Tro­jan horse turned li­a­bil­ity

Or state pres­i­dent in wait­ing?

Finweek English Edition - - Openers - TROYE LUND

THE LEAD­ER­SHIP OF the ANC may have niftily got rid of the “Thabo Mbeki prob­lem”. But a po­ten­tially po­tent new one has been cre­ated. That’s the predica­ment of run­ning an elec­tion cam­paign with a per­cep­tion of cor­rup­tion hang­ing over the head of state pres­i­dent-elect Ja­cob Zuma. There’s real con­cern in the ANC lead­er­ship that the elec­torate will stay away on vot­ing day next year to ex­press their dis­sat­is­fac­tion over a spe­cial deal be­ing hatched to keep Zuma from fac­ing his charges in court.

The di­vi­sive prob­lem blamed on Mbeki hasn’t gone away. Fin­week mapped out var­i­ous sce­nar­ios based on the Na­tional Pros­e­cut­ing Au­thor­ity’s (NPA) op­tions, the var­i­ous fac­tional de­bates in the ANC as well as the po­lit­i­cal ram­i­fi­ca­tions with re­gard to some of those. OP­TIONS OPEN TO THE NPA There are two op­tions: The NPA can ap­peal or abide by Judge Chris Ni­chol­son’s rul­ing in the Pi­eter­mar­itzburg High Court, which found the NPA breached proper pro­ce­dure when it recharged Zuma in De­cem­ber last year. Abid­ing by that de­ci­sion would mean the NPA could give up or fol­low the proper pro­ce­dure and recharge Zuma. Sev­eral lawyers, ad­vo­cates and le­gal aca­demics that Fin­week in­ter­viewed on this sub­ject agreed the ap­peal route is prob­a­bly the best shot the NPA has at recharg­ing Zuma. Be­cause it would be a civil case, the pro­ce­dure for that is for the NPA to ap­proach Ni­chol­son him­self for leave to ap­peal.

All this begs ques­tions about how far the ANC will go to make sure the NPA gives up sooner rather than later. While the party can’t be seen to be in­ter­fer­ing, as that would be do­ing ex­actly what Mbeki was ac­cused of, var­i­ous po­lit­i­cal sce­nar­ios may play them­selves out at the same time as the le­gal pro­cesses. HOSTAGE SCE­NARIO The NPA ap­peals but loses in all its at­tempts, in­clud­ing its ap­peal to the Con­sti­tu­tional Court. Zuma is in­au­gu­rated state pres­i­dent without be­ing recharged. While that’s very pos­si­ble, sources in the ANC are al­ready rais­ing con­cerns that a pres­i­dent who comes into of­fice with the im­age that a spe­cial deal was cut to keep him out of jail comes with sig­nif­i­cant risk, in that it could ex­ac­er­bate divi­sion and fac­tion­al­ism in the ANC’s ranks. That con­tes­ta­tion and un­ease could deepen ex­ist­ing party fac­tion­al­ism.

Po­lit­i­cal aca­demic and au­thor William Gumede says: “Mak­ing Zuma pres­i­dent of SA won’t end the lead­er­ship vacuum in the ANC and the coun­try but may ac­tu­ally worsen it.” THE NPA FORGES AHEAD If the NPA ap­peal process is suc­cess­ful and the path is again open for Zuma to be recharged, at what point will Zuma be­come a se­ri­ous li­a­bil­ity for the ANC? Ac­cord­ing to Mbeki’s sup­port­ers in the ANC, there’s a sig­nif­i­cant group in the party who be­lieve he should face the charges and the le­gal process should be com­pleted.

In that sce­nario, Zuma is recharged. With Mbeki com­pletely out of the pic­ture, act­ing State Pres­i­dent Kgalema Mot­lanthe could stay on as Pres­i­dent of the coun­try un­til Zuma’s le­gal is­sues have been con­cluded. There are some in the party who ar­gue that, even be­fore the elec­tion cam­paign kicks off, Zuma should be con­vinced to re­main ANC party pres­i­dent while Mot­lanthe leads the coun­try in Gov­ern­ment. PER­MA­NENT STAY OF PROSE­CU­TION FOR ZUMA In that sce­nario there’s a good chance that Ni­chol­son will per­ma­nently chuck out the old charges of cor­rup­tion be­cause they’ve been around too long and com­pro­mised Zuma’s right to a speedy trial. But there’s a ques­tion mark about the newer charges. The FW de Klerk Foun­da­tion’s ad­vo­cate, Paul Hoff­man, be­lieves Ni­chol­son may well rule that Zuma has to an­swer those rack­e­teer­ing charges. The Con­sti­tu­tional Court re­cently ruled the doc­u­men­ta­tion for those charges ad­mis­si­ble. Hoff­man doesn’t be­lieve a case can be made about po­lit­i­cal in­ter­fer­ence based on those charges, as they de­pend on hard foren­sic ev­i­dence.

If that hap­pens Zuma could end up fac­ing charges in court af­ter all and that would put the ANC lead­er­ship un­der pres­sure to re­con­sider their can­di­date for the coun­try’s top job. The ques­tion is whether a state pres­i­dent could han­dle so much le­gal fare on his plate at the same time as take over the pri­mary role of gov­ern­ing the coun­try?

LOG­I­CAL CON­CLU­SION OR FAN­CI­FUL IDEAL? In that sce­nario the NPA ei­ther loses its ap­peal or de­cides to throw in the towel. Mot­lanthe steps down to make way for Zuma af­ter the ANC wins the 2009 elec­tion. The party and its al­liance part­ners emerge af­ter the elec­tion uni­fied, af­ter hav­ing for­given and/or for­got­ten about the dra­matic hos­til­i­ties against Mbeki and his suc­ces­sor that nearly tore the party apart. PRES­I­DEN­TIAL PAR­DON The NPA wins its ap­peal, re­in­states the charges (us­ing the cor­rect pro­ce­dures) and Zuma is found guilty. An SMS cam­paign has al­ready started, cour­tesy of the ANC Youth League. They’re call­ing for Mot­lanthe to give Zuma a pres­i­den­tial par­don. While that may scup­per Zuma’s in­ten­tion to be state pres­i­dent it would be a way for him to stay out of jail.

That’s an­other op­tion that would leave Zuma and Mbeki liv­ing their days on the pe­riph­ery of party power while Mot­lanthe and his team run SA.

Read Fin­week and join the de­bate.

17 Jan­uary 2008

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