Fran­tic Zuma’s last bid

The pres­i­dent’s high court ef­fort to try to dic­tate the terms of the state cap­ture probe reeks of le­gal des­per­a­tion

CityPress - - Voices - Tebogo Khaas voices@city­press.co.za Khaas is a busi­ness­man and po­lit­i­cal com­men­ta­tor

As Pres­i­dent Ja­cob Zuma me­an­ders to­wards his po­lit­i­cal twi­light, he has un­doubt­edly be­come a des­per­ate old man who serves a clear and present dan­ger to our democ­racy. Let me ex­plain. With the Rus­sian eco­nomic hit­men os­ten­si­bly in town to col­lect their pound of flesh, Zuma’s in­creas­ing loss of grip on the lev­ers of po­lit­i­cal power and his de­scent into a le­gal quandary have thrust our con­sti­tu­tional democ­racy into mor­tal dan­ger.

The true ex­tent of Zuma’s in­debt­ed­ness to those he is be­holden to, and the dam­age he has caused to this na­tion’s po­lit­i­cal econ­omy, will prob­a­bly never be fully es­tab­lished nor pub­licly known, at least not in our life­time.

On the one hand, if his play­ing mu­si­cal chairs with ap­point­ments at Trea­sury and the depart­ment of en­ergy are anything to go by, Zuma seems to be in deep trou­ble as he seeks to sa­ti­ate prom­ises he made to de­liver on a nu­clear deal.

Through what is ev­i­dently a des­per­ate ef­fort at en­sur­ing that the fis­cus con­tin­ues to bleed, be­cause of ex­or­bi­tant spend­ing on a nu­clear en­ergy project that South Africa’s econ­omy does not need and that its tax­pay­ers can­not af­ford, Zuma has in­stalled his acolytes at both de­part­ments in an at­tempt to keep his part of his cor­rupt deal­ings with foreign in­ter­ests.

On the other hand, he was re­cently dealt a se­vere le­gal blow when the Supreme Court of Ap­peal evis­cer­ated his hopes of staving off his pros­e­cu­tion on graft charges he has ex­pended his pres­i­dency at­tempt­ing to evade.

In this in­stance, Zuma as­ton­ished all and sundry with his stun­ning 11th hour con­ces­sion that the Na­tional Pros­e­cut­ing Author­ity had acted un­law­fully when it dis­con­tin­ued his pros­e­cu­tion on graft charges he faced prior to his as­cen­sion to the high­est of­fice in the land.

Com­pound­ing his le­gal woes is the Pub­lic Pro­tec­tor’s State of Cap­ture re­port, in which she com­pelled him to es­tab­lish a ju­di­cial com­mis­sion of in­quiry aimed at un­cov­er­ing the ex­tent of the rot un­der his di­rec­tion and the Gupta fam­ily’s role in it.

Although Zuma has sought to in­val­i­date said re­port through the High Court in Pre­to­ria, his sub­mis­sions to that court and pub­lic ex­hor­ta­tions in this re­gard are man­i­festly fan­tas­ti­cal.

Firstly, while he pub­licly com­mit­ted to the estab­lish­ment of the com­mis­sion of in­quiry, his de­mands that he ap­point the com­mis­sioner and that the in­quiry ex­clude him are morally and legally per­plex­ing.

The sham of the Ser­iti com­mis­sion into the arms deal, for which he ap­pointed the com­mis­sioner while im­pli­cated in con­duct it in­ves­ti­gated, is still fresh and re­ver­ber­ates pal­pa­bly in the pub­lic mind.

It is im­pos­si­ble to delink Zuma’s con­nec­tion with those im­pli­cated along­side him from al­le­ga­tions of state cap­ture. Un­like as it tran­spired with the pros­e­cu­tion and sub­se­quent con­vic­tion of his for­mer fi­nan­cial ad­viser, Sch­abir Shaik, for cor­rup­tion, any proper in­ves­ti­ga­tion of im­pro­pri­ety on the part of his and his acolytes will ne­ces­si­tate that Zuma come un­der scru­tiny as well.

Zuma is al­leged to have played a cen­tral role in state cap­ture. He is ac­cused of ac­tively aid­ing and abet­ting state cap­ture by abus­ing his of­fice as pres­i­dent of the repub­lic.

Se­condly, he’s call for a com­mis­sion of in­quiry that would in­cor­po­rate malfea­sance com­mit­ted dur­ing the apartheid era, is an at­tempt to fur­ther de­lay or even com­pletely evade scru­tiny and pos­si­ble pros­e­cu­tion.

Lest we for­get, re­me­dial ac­tion or­dered by for­mer Pub­lic Pro­tec­tor Thuli Madon­sela is a con­se­quence of spe­cific com­plaints laid with her of­fice per­tain­ing to Zuma’s and his sup­port­ers’ con­duct dur­ing his term in of­fice.

It is worth not­ing that Zuma failed to co­op­er­ate with Madon­sela dur­ing her in­ves­ti­ga­tion as he avoided re­spond­ing fully to her ques­tions. How could the pub­lic now trust him and ac­cept his sud­den epiphany and dis­cov­ery of con­science when he of­fers to sub­ject him­self to an in­ves­ti­ga­tion by the new Pub­lic Pro­tec­tor?

Im­por­tantly, it was never the com­plainants’ re­quest that apartheid state cap­ture be in­ves­ti­gated. The com­plaint was against the ap­par­ent cap­ture of the new demo­cratic state un­der Zuma.

Should Zuma feel the need for an in­ves­ti­ga­tion of apartheid-era state cap­ture – and God knows if that should also in­clude malfea­sance dur­ing the colo­nial­ists’ era – noth­ing pre­cludes him from ap­proach­ing the current Pub­lic Pro­tec­tor with a re­quest for such an in­ves­ti­ga­tion or him es­tab­lish­ing a ju­di­cial com­mis­sion of in­quiry, sep­a­rate to what is now be­fore the high court.

Per­haps it is worth point­ing out the irony that, while a key mem­ber of the ANC ne­go­ti­at­ing team at the Congress for a Demo­cratic SA, Zuma and his com­rades re­port­edly agreed to a deal that en­sured that cor­rupt ben­e­fi­cia­ries of the apartheid beast’s largesse avoided pros­e­cu­tion un­der the new, demo­cratic dis­pen­sa­tion.

As we now know, the out­come of the in­ves­ti­ga­tion of the Bankorp lifeboat dur­ing the apartheid regime acutely demon­strates the dif­fi­culty to be expected in re­al­is­ing jus­tice and resti­tu­tion from such com­pli­cated, lengthy and costly in­ves­ti­ga­tions.

It may be po­lit­i­cally ex­pe­di­ent and de­sir­able to in­ves­ti­gate, for in­stance, me­dia con­glom­er­ate Naspers, min­ing gi­ants An­glo Amer­i­can and De Beers, IT be­he­moth Al­tron, agro-oli­garchs Sen­wes and Af­gri, Ur­ban Bantu coun­cil­lors and many oth­ers for un­law­fully ben­e­fit­ting fi­nan­cially from the in­iq­ui­tous apartheid sys­tem. How­ever, it is doubt­ful if our already stretched fis­cus can af­ford to em­bark on such a costly ex­er­cise which may yield Pyrrhic vic­to­ries.

Zuma is a mas­ter of kick­ing for touch. He ex­cels in the mav­er­ick art of ten­der­ing eleventh-hour pub­lic epipha­nies when cor­nered by the courts. His lat­est spec­ta­cle be­fore the courts reeks of le­gal des­per­a­tion and an at­tempt at cre­at­ing pub­lic and ju­di­cial pres­sure valves as he seeks to evade jus­tice. It is ev­i­dent that our pres­i­dent rev­els in plac­ing our ju­di­ciary in in­vid­i­ous po­si­tions.

Zuma is, once again, ca­jol­ing the full bench of the high court into mak­ing pro­nounce­ments which it would prob­a­bly pre­fer not to have to make, were it not for his un­prece­dented excesses.

Our Con­sti­tu­tion en­joins the ex­ec­u­tive branch of the state to com­ply with the obli­ga­tions im­posed on it. That in­cludes im­ple­ment­ing law­ful, ra­tio­nal and prac­ti­cal re­me­dial ac­tion as de­manded by the Pub­lic Pro­tec­tor.

Although Zuma was within his le­gal re­mit to chal­lenge the Pub­lic Pro­tec­tor’s or­der that he sur­ren­der his con­sti­tu­tion­ally as­cribed power to ap­point a ju­di­cial com­mis­sion of in­quiry to the Chief Jus­tice ow­ing to Zuma’s al­leged com­plic­ity in state cap­ture, he has failed to of­fer a plau­si­ble and ra­tio­nal so­lu­tion to the in­her­ent con­flict of in­ter­est posed in this in­stance.

It would, there­fore, be a rea­son­able ex­pec­ta­tion for the court to rule against his as­ser­tion of a pres­i­dent’s ex­clu­sive con­sti­tu­tional right to ap­point ju­di­cial com­mis­sions of in­quiry – for ob­vi­ous and prac­ti­cal rea­sons.

Sec­tion 84(2)(f) of the Con­sti­tu­tion was never cod­i­fied with an er­rant, con­sti­tu­tion­ally delin­quent pres­i­dent, such as Zuma has proven him­self to be, in mind. He must of ne­ces­sity and logic be spared the re­spon­si­bil­ity.

As we await the rul­ing by the high court, let me re­state the ob­vi­ous. The Rus­sians are in town and some­one must pay.

Time is fast run­ning out for a des­per­ate Zuma. He is ar­guably left with a few le­gal and po­lit­i­cal chi­canes to ne­go­ti­ate be­fore he faces jus­tice and/or the no­to­ri­ous Rus­sians whose reach and ca­pa­bil­i­ties can un­leash a shiver down any hard­ened mob­ster’s spine.

Our con­sti­tu­tional democ­racy con­tin­ues to en­dure ag­o­nis­ing stress tests un­der an in­her­ently in­ept and cor­rupt Zuma.

The ju­di­ciary re­mains the most ef­fec­tive bul­wark against the de­rail­ment of our found­ing fa­thers’ dream.

The court in Pre­to­ria has a duty not to give Zuma room to ei­ther de­fer or steal our dream.

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