Five of the ANC's top six members - secretary-general Gwede Mantashe, ANC president Jacob Zuma, ANC deputy president Cyril Ramaphosa, and treasurer-general Zweli Mkhize.   Picture: Masi Losi
Five of the ANC's top six members - secretary-general Gwede Mantashe, ANC president Jacob Zuma, ANC deputy president Cyril Ramaphosa, and treasurer-general Zweli Mkhize. Picture: Masi Losi

ANC NEC need to fire Zuma themselves

By Mcebisi Ndletyana Time of article published Apr 3, 2016

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Failing to act against Zuma now will mean the party has been completely deformed, writes Mcebisi Ndletyana.

Johannesburg - What now? The Constitutional Court ruling on Nkandla carries unavoidable implications for the ANC and its president, Jacob Zuma. Whether or not Zuma continues as president of the country is the question the party must now answer.

This is occasioned by both precedence and the constitution, both of which the ANC cannot ignore.

Part of the judgment addresses the question of whether or not President Zuma violated the constitution. This relates to his refusal to comply with the public protector’s remedial action that he should reimburse the state for the installation of non-security features at his homestead, Nkandla.

The Concourt has ruled that Zuma has indeed failed to execute his duties as president of the country. According to the constitution, Zuma “must uphold, defend and respect the constitution as the supreme law of the Republic”.

This imposes a duty, as the Concourt argued, on the president “to ensure that state resources are used only for the advancement of state interests”.

Ensuring proper use of public expenditure is not only a presidential duty, but is also one of the elements that constitute the essence of his office, as the court explained: “...the nation pins its hopes on him to steer the country in the right direction and accelerate the journey towards a peaceful, just and prosperous destination, that all other progress driven nations strive towards on a daily basis.

“He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”

In refusing to comply with the public protector’s remedial actions, the court ruled, Zuma has thus “failed to uphold, defend and respect the constitution”.

This stems from the court’s assertion that such remedial actions are binding, and can be overturned only by a court of law.

And, this is hardly a profound legal point, but simply reaffirms common-sense, as the Concourt stated: “If it were, by design, never to have a binding effect, then it is incomprehensible just how the public protector could ever be effective in what she does and be able to contribute to the strengthening of our constitutional democracy.”

Zuma didn’t even bother with a judicial review, but commissioned his own inquiry for the expressed purpose of exonerating himself.

This action, according to the Concourt, amounted “to taking the law into their own hands and is illegal”.

Violating the constitution constitutes grounds for dismissal.

The constitution, for instance, states that the president can be removed from office on the grounds of “(a) a serious violation of the constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office”.

Zuma’s breach fulfils the first two grounds, and thus warrants the tabling of a motion of no confidence in the president.

The ruling party can counter that the violation is not so serious that it calls for removal of the president. Ultimately, it all boils down to whether or not the ANC wants to fire Zuma.

The opposition obviously lacks the majority that is required for the motion to pass. But, there’s precedence for the party to follow. It fired Thabo Mbeki in 2008 on exactly similar grounds.

Judge Chris Nicholson had ruled that Mbeki meddled with the public prosecutor to prosecute Jacob Zuma for possible corruption.

The party took that as a violation of his constitutional oath and fired Mbeki.

That decision was also made easier by the fact that Mbeki had been voted out as president of the party, and lacked sufficient support within the national executive committee (NEC) of it.

Unlike Mbeki, Zuma still commands support within the NEC. Most owe their rise and access to patronage to Zuma. They’re unlikely to vote for his dismissal.

That would make them vulnerable, especially to the inquiry that’s ongoing on possible corruption with the Gupta family. This is also Zuma’s worry. He won’t leave voluntarily for fear of prosecution.

Revelations from the Gupta inquiry are not the only concern for Zuma. There’s another possible case of corruption that may be brought against him, arising from the trial of his convicted former financial adviser Schabir Shaik.

Control over the state is critical to Zuma avoiding possible jail-time.

He doesn’t want to appear in court over corruption charges. He has avoided this for years through all sorts of machinations. This has involved appointments of incompetent sycophants to state institutions to protect him, and he has fired those who contemplated re-opening the case against him.

He’s also used state funds to hire expensive lawyers to appeal court decisions. All this was made possible by Zuma’s position as president.

Leaving the presidency denies him of authority and resources he has used to evade an adverse judgment and possible imprisonment.

But the ANC must take a decision. This ruling adds yet another stain on its reputation. Failing to act against Zuma means the party approves of his illegality.

This makes it difficult to contest effectively in the coming local elections.

Their electoral message will be diluted by public disgust at their protection of a mischievous president, and this will in turn inevitably lead to a further drop in electoral support.

Zuma’s detractors will possibly argue that the electoral cost of retaining Zuma will be not be severe. Indeed, Zuma can possibly explain this away to some supporters of the ANC.

He is charming and enjoys uncritical support in some parts of our country. In the highly contested urban centres, however, the ANC will most certainly lose elections.

Nkandla has already cost the party in the 2014 national elections in Gauteng, the economic hub of South Africa. That thought alone is sufficient to prompt the party into taking action against Zuma.

Censure against Zuma, however, will not come from Parliament. That will deny the party of taking full credit. Although the motion of no-confidence in the president would have been passed by the ANC majority, it would still appear as if it was coerced out of them.

They would have been responding to a motion tabled by the opposition, and thus earning the opposition praise for “forcing” the ruling party into firing Zuma.

That’s why Zuma’s firing, if it happens, will be orchestrated by the party’s NEC. This enables the party to gain full applause, and develop a strong message to take to the voters.

That message is that the party is capable of self-correction.

This has been its mantra now since it became prone to scandals, but there’s little evidence to back up the claim.

Zuma’s scalp will be substantial evidence it is capable of cleansing itself. Failing to act against Zuma would mean the party has been completely deformed. It will be reduced to a pure election machine, without any moral authority.

That will be a total deviation from its true self. Moral authority has been a dominant feature in ANC leadership. Now is the time to regain it, or slide further down.

* Ndletyana is Associate Professor of Political Science at the University of Johannesburg, and a fellow at the Mapungubwe Institute for Strategic Reflection

** The views expressed here are not necessarily those of Independent Media.

The Sunday Independent

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