The courts have re­peat­edly brought our scan­dal-rid­den pres­i­dent to book and he’s sur­vived many no con­fi­dence votes, but one way or another his power will soon de­cline, writes Richard Cal­land

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LIKE the prover­bial cat with nine lives, South Africa’s scan­dal-rid­den pres­i­dent, Ja­cob Zuma, might well have es­caped yet again with his po­lit­i­cal life. This de­spite another re­sound­ing loss in the high­est court.

The Con­sti­tu­tional Court ruled that there was no con­sti­tu­tional bar to the Speaker of the Na­tional Assem­bly, Baleka Mbete, opt­ing to em­ploy a se­cret bal­lot in a no con­fi­dence vote in Par­lia­ment.

She’d orig­i­nally as­serted that she didn’t have the author­ity to make the de­ci­sion, prompt­ing sev­eral op­po­si­tion par­ties – fu­ri­ous at Zuma’s in­creas­ingly dic­ta­to­rial project of “state cap­ture” – to take the mat­ter to court.

South Africa’s ju­di­cial sys­tem con­tin­ues to hold firm. This is de­spite the fact that there ap­pears to be a concerted and well co-or­di­nated cam­paign by a group of politi­cians and busi­ness­men to un­der­mine the in­tegrity of state in­sti­tu­tions as well as to ex­ploit their weak­nesses to pros­e­cute a project of self-en­rich­ment and rent-seek­ing. The cam­paign is piv­oted on the no­to­ri­ous Gupta fam­ily.

Zuma has been brought to book re­peat­edly by the courts. In March last year, the Con­sti­tu­tional Court found that he, as well as Par­lia­ment, had violated the con­sti­tu­tion.

It did so by fail­ing to de­fend and up­hold the con­sti­tu­tional author­ity of South Africa’s om­bud – its pub­lic pro­tec­tor – who had con­ducted an in­ves­ti­ga­tion into the pres­i­dent’s pri­vate home­stead, Nkandla. Thuli Madon­sela found that Zuma and his fam­ily had un­law­fully ben­e­fited. He was re­quired to pay back nearly R8 mil­lion to the state. Yet, fol­low­ing a half-baked apol­ogy, Zuma held on to power.

In Par­lia­ment, he’s sur­vived a num­ber of no-con­fi­dence votes mounted by the op­po­si­tion. He also dodged two such at­tempts in the na­tional ex­ec­u­tive com­mit­tee of his own party, the rul­ing ANC – one in Novem­ber last year and most re­cently in late May.

He’s been backed by an in­creas­ingly slen­der yet suf­fi­cient num­ber of loy­al­ists and na­tion­al­ists for whom he pro­vides po­lit­i­cal cover for their pop­ulist and self-serv­ing call for “rad­i­cal eco­nomic trans­for­ma­tion”.

The tip­ping point for the lat­est legal skir­mish was Zuma’s reck­less and ap­par­ently self-in­ter­ested de­ci­sion to fire the widely re­spected min­is­ter of fi­nance, Pravin Gord­han, on March 30 this year.

De­spite a cold war with Zuma, Gord­han had held the line against state cap­ture for 15 months af­ter his reap­point­ment in De­cem­ber 2015. And so, as night fol­lows day, Gord­han’s re­moval pre­cip­i­tated an im­me­di­ate rat­ings’ agency down­grade. The down­grade added fur­ther pressure to an al­ready weak econ­omy, un­der­min­ing any prospects of eco­nomic growth to ad­dress the high lev­els of un­em­ploy­ment and in­equal­ity that threaten its pre­car­i­ous so­cial sta­bil­ity.

Once again, in re­sponse to Zuma’s ill-con­sid­ered cabi­net reshuf­fle, the largest op­po­si­tion party, the DA, tabled a mo­tion of no con­fi­dence in the Na­tional Assem­bly.

There has been an ap­par­ent shift in at­ti­tude in the ANC’s par­lia­men­tary cau­cus sug­gest­ing that the no con­fi­dence vote might have a chance of suc­ceed­ing. Many ANC MPs are anx­ious about the party’s prospects at the 2019 na­tional elec­tion and their own po­lit­i­cal future.

But there’s also con­cern about Zuma’s ap­par­ent hold over many back­bench MPs. A lot of them fear ret­ri­bu­tion and ex­pul­sion should they vote against the pres­i­dent. If an MP ceases to be a mem­ber of the party on whose list they stood at elec­tion time, they au­to­mat­i­cally lose their seat in Par­lia­ment.

One of the smaller op­po­si­tion par­ties, the UDM, re­quested the Speaker to use a se­cret bal­lot to en­able MPs to vote with their con­science. Mbete, who is also the na­tional chair­per­son of the ANC, re­fused. She claimed that she did not have the power to make the de­ci­sion.

The con­sti­tu­tion is unclear. It pro­vides for the pres­i­dent and the cabi­net to be re­moved by the Na­tional Assem­bly by a bare ma­jor­ity fol­low­ing “a vote”. In the se­cret bal­lot case, the court could have in­ter­preted “a vote” to mean “a se­cret vote”. Equally, how­ever, the fail­ure of the con­sti­tu­tion to spec­ify a se­cret bal­lot in the case of a no con­fi­dence vote could mean an open bal­lot was in­tended.

Last Thurs­day the Con­sti­tu­tional Court took nei­ther route. It held that the con­sti­tu­tion could have pro­vided for a vote by se­cret bal­lot or open bal­lot. It did nei­ther.

Rather, it held that the Na­tional Assem­bly had, in ef­fect, em­pow­ered the Speaker to de­cide how a par­tic­u­lar mo­tion of no con­fi­dence in the pres­i­dent is to be con­ducted.

Ac­cord­ingly, the court set aside the Speaker’s de­ci­sion that she lacked con­sti­tu­tional power to or­der a se­cret bal­lot.

No­tably, Zuma had en­tered the pro­ceed­ings to ar­gue, like the Speaker, that there was no power to or­der a se­cret bal­lot and no need to do so.

The court point­edly ob­served that Mbete has “an enor­mous re­spon­si­bil­ity” to en­sure that when she de­cided whether on a “sit­u­a­tion spe­cific” case-by-case ba­sis a se­cret bal­lot should be em­ployed.

She should do so on a “ra­tio­nal and proper ba­sis”, with due and care­ful re­gard to a pur­pose of the no-con­fi­dence vote.

Im­por­tantly, the court noted that the pri­mary duty of MPs is to the con­sti­tu­tion and not to their par­ties.

The im­pli­ca­tion is that the abil­ity of MPs to vote with their con­science in such a sit­u­a­tion is clearly a fac­tor that the Speaker should take into ac­count when mak­ing her de­ci­sion.

Some crit­ics will re­gard the court’s “guid­ance” as in­suf­fi­ciently pre­cise. But the court was clearly anx­ious not to en­croach on the sep­a­ra­tion of pow­ers – per­haps mind­ful of the vir­u­lent claims from some quar­ters of “ju­di­cial over­reach”.

Mbete will have to choose be­tween her loy­alty to her pres­i­dent as one of the ANC’s “Top Six” lead­er­ship and her duty to the con­sti­tu­tion as Speaker.

Later on the same day of the judg­ment Zuma was an­swer­ing ques­tions in Par­lia­ment. Judg­ing by his typ­i­cally thick­skinned signs of con­fi­dence, the pres­i­dent was not un­duly per­turbed by the court’s rul­ing.

While the court stated the power to de­cide on whether to hold a se­cret bal­lot or not should “not be ex­er­cised ar­bi­trar­ily or whim­si­cally”, Zuma has made it clear that he ex­pected Mbete to de­cide that a se­cret bal­lot was in­ap­pro­pri­ate or un­nec­es­sary.

Par­lia­ment re­turns af­ter its cur­rent mid-year win­ter re­cess in Au­gust. If Mbete once again de­clines to hold a se­cret bal­lot, her de­ci­sion will, in turn, then be sub­ject to ju­di­cial re­view ap­pli­ca­tion. In due course the court could be forced to or­der her to hold a se­cret bal­lot.

De­spite the Con­sti­tu­tional Court judg­ment, and the lu­cid­ity of its rea­son­ing, a no con­fi­dence vote held with a se­cret bal­lot is some way off.

Un­til then, Zuma lives to fight another day.

But with ev­ery pass­ing day, De­cem­ber’s ANC na­tional elec­tive con­fer­ence gets closer. Then Zuma’s term as pres­i­dent of the ANC ex­pires. Then his power will de­cline po­ten­tially de­ci­sively.

One way or another, Zuma is run­ning out of po­lit­i­cal lives. – The Con­ver­sa­tion

Many ANC MPs are anx­ious about the 2019 elec­tion

Richard Cal­land is as­so­ciate pro­fes­sor in pub­lic law, Uni­ver­sity of Cape Town


BLASÉ: On the same day as the Con­sti­tu­tional Court judg­ment last week, Pres­i­dent Ja­cob Zuma was an­swer­ing ques­tions in Par­lia­ment. And judg­ing by his typ­i­cally thick-skinned signs of con­fi­dence, he wasn’t un­duly per­turbed by the court’s rul­ing, says the writer.

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