Legalbrief | your legal news hub Saturday 02 October 2021

Zuma exit at what cost to rule of law?

ANC indecisiveness on the future of President has created a swirl of speculation about whether he is about to resign. With a deal being struck yesterday between Zuma and his deputy , most media outlets are expecting Zuma’s imminent resignation, perhaps even as early as today, but the question that isn’t being asked in the apparent eagerness to shut the door on this sad chapter in SA’s democratic project, notes Legalbrief, is at what cost to the rule of law? Given Zuma’s keenly-honed self-preservation instincts, it’s unlikely he has agreed to go without a deal guaranteeing he won’t be jailed – should he be convicted – for any of the myriad offences with which he is being charged. As one senior ANC insider put it, according to a Times Select report: 'You have to be frank about these things. He knows the time is up. It is a matter of getting a few things lined up for him.’ The ANC leadership has denied that an amnesty deal would be negotiated with Zuma, but according to the insider, some ANC leaders who were previously supportive of Zuma argued that his exit must be amicable and negotiated. ‘For me the proper approach will be the Zimbabwean way. Go to the old man … Say: "Go and then we won’t run after you. You will be fine".’ Already, notes Legalbrief, we have the unprecedented situation of an indefinite delay in the State of the Nation Address (Sona), which was scheduled for tomorrow, and there has been speculation, prompted by the SACP – and denied as ‘preposterous and outrageous’ by the Presidency – that Zuma was preparing to fire Ramaphosa ‘anytime from now’ and replace him with Nkosazana Dlamini-Zuma, who he wants as acting President should he be removed.

TimesLIVE may be closest to the mark when it says Zuma will resign as soon as a list of preconditions has been finalised. It says the deal led to the postponement of an ANC national executive committee (NEC) meeting scheduled for today to force Zuma’s removal from office. That meeting would have heard a recommendation from the ANC’s national working committee that Zuma be removed as head of state. Zuma spent yesterday morning in Tuynhuys dealing with Cabinet committee meetings. Afterwards, he left for Genadendal, his official residence in Cape Town. Ramaphosa met Zuma there after 4pm alongside ANC secretary-general Ace Magashule. Magashule reportedly told TimesLIVE later that the meeting between the two presidents had been ‘constructive and robust’. ‘I was there… I left the two presidents to engage and I joined the meeting towards the end,’ he said. Magashule said Zuma and Ramaphosa agreed that the decision to postpone Sona was correct. ‘They also agreed that the urgent NEC (meeting) called should be postponed after their constructive discussion,’ he said. Magashule would not confirm whether Zuma had agreed to resign, although other ANC leaders indicated that the deal that was struck would see Zuma ‘go in a dignified way’. The secretary-general would not say who would deliver the State of the Nation Address once a new date is announced.

Before yesterday’s meeting Zuma had refused to resign, arguing that he had done nothing wrong. According to a Business Day report, insiders say Zuma told officials that the NEC had accepted his apology on Nkandla; that he had complied when the new leadership asked him to change the Eskom board; and that he had also set up a commission of inquiry into state capture, as requested. He said he did not see what was ‘new’ to warrant his removal. Zuma was warned by officials that he could lose his benefits if he faced parliamentary processes to effect his removal. To this he replied that he did not join the struggle for benefits. Zuma urged the officials to have the NEC take a decision on his removal, which he indicated he would comply with, notes the report. However, it says, there was still concern among some leaders that he will not resign, as former President did in 2008, once recalled by the NEC. Should Zuma fail to resign once recalled, the ANC is poised to bring its own motion of no confidence against him. The Presidency said it was Zuma who wrote to Parliament requesting the postponement, to which the presiding officers acceded. ‘The President has requested the postponement due to certain developments which make it not conducive to successfully hold the sitting and deliver the Sona,’ spokesperson, Bongani Ngqulunga said. The first requests for the postponement came from opposition parties. The DA has claimed credit for the postponement of the event, welcoming Mbete’s decision to accede to its request, which it made last week. The EFF welcomed the postponement as a move towards Zuma’s removal. It re-iterated its call for a motion of no confidence in him.

National Council of Provinces chair says a week will be enough to resolve the issues that forced the Sona postponement. Modise said that a new date for the event had not yet been scheduled – but that they wanted it sooner rather than later. ‘We do have a proposal (to postpone) by not more than a week. So‚ if we can‚ a week will be sufficient‚’ Modise said, according to a TimesLIVE report. The annual budget speech‚ delivered by the Finance Minister‚ is scheduled for just two weeks later‚ on 21 February. Speaker Baleka Mbete said every effort was being made to ensure the Sona postponement did not affect the budget speech. ‘This postponement has taken into account scheduled tabling of the budget in the next two weeks‚ and we are going all out to make sure that the budget is not disturbed or‚ in fact‚ postponed at all because that would affect the lives of the Republic. We wish to assure fellow South Africans and everyone affected by this decision that these actions are being taken in the best interest of Parliament and the country. A new date for Sona will be announced very‚ very soon‚’ she said.

The DA, meanwhile, is asking for its impeachment motion against Zuma to be urgently placed back on the agenda. ‘Parliament must elect a new President, and this must be done via a special sitting of Parliament next week. One thing we cannot postpone is removing Jacob Zuma and electing a new President. This must be done in the next week,’ DA leader Mmusi Maimane is quoted as saying in a News24 report. ‘To this end, the DA will be writing to Speaker Baleka Mbete to ensure that our impeachment motion, tabled last year, is urgently placed back on the order paper and the rules governing the impeachment process are finalised this week.’ Maimane had written to Mbete, requesting that Sona be postponed indefinitely until the current leadership crisis within the ANC is resolved.

Why bother with Sona at all? There are no legal impediments to ditching it. Pierre de Vos, in an article on his Constitutionally Speaking blog, says there is nothing in the Constitution or the rules of Parliament that prohibits such a postponement. In fact, nothing requires the President to deliver a Sona. Arguably, says the constitutional law expert, the address could easily be cancelled without the nation being any the poorer for it and without any legal rule being broken.

See POLICY WATCH section (below): Sona content the real issue