South Africa

Op-Ed: The Nicholson Judgement was the tool, not the motivation, for Thabo Mbeki’s recall

By Stephen Grootes 16 February 2016

Mbeki’s newsletters are required reading for those with an interest in conspiracy theories - and those with medium-term memories. They provide some sort of illustration about what was happening in his mind during his presidency and what is happening in his mind now. While some of his musings have invited ridicule, the latest edition is different. It's about the judgment that led to his recall. He's right to criticise that judgment, but it appears he still doesn't understand what really happened. By STEPHEN GROOTES.

The events of 2008, the fabled eight days in September that led to Mbeki’s recall, were so quick that it can be difficult to remember how it all started. In brief: Now-President Jacob Zuma had just ascended to the throne at Polokwane, but still faced the corruption charges arising out of the conviction of Schabir Shaik. On December 28, just days after his Polokwane victory, he was formally charged by the National Prosecuting Authority (NPA) with corruption.

The timing was suspicious: it was after former NPA head Bulelani Ngcuka had been discussing just that issue with acting NPA head Leonard McCarthy in conversations that were recorded and later become known as the Zuma Spy Tapes.

As part of his ‘Stalingrad’ strategy, Zuma’s legal team went to court to challenge the decision to prosecute. They claimed that Zuma was the victim of a political conspiracy. Mbeki’s name was mentioned in passing. But remember the timing: Advocate Vusi Pikoli had been suspended as NPA head, so things were confusing. At the time, it was thought this was an application that had no chance, that it was simply a delaying tactic.

Almost everyone was shocked when Judge Chris Nicholson handed down a ruling staying the decision to prosecute. Essentially, he bought the argument about political manipulation. He appeared to vindicate Zuma at a time when many people thought Zuma was just making it up.

Just an hour after the judgment I asked ANC spokesperson Jessie Duarte if the ANC would ask Mbeki to resign. She said they would consider it at an NEC meeting scheduled for that week.

Two day later, in a surreal moment late on a Sunday evening at the Presidential Guest House, Mbeki gave a press conference with FIFA President Sepp Blatter. The FIFA flag was given the same prominence as South African flag. When questions came, I asked Mbeki if he would resign if asked by the ANC. He said he couldn’t answer now and muttered something about how Essop Pahad would get him to make a formal response in the next few days or so. When I tried to press him, Blatter intervened, and tried to protect him. For which I’ve never forgiven him.

That Friday the NEC started its meeting. By 5pm that evening, literally every journalist in the country was at Esselen Park in Johannesburg. But it was only on Saturday that Gwede Mantashe announced what he had already told Mbeki early that morning: that the ANC was recalling the sitting President.

It is this series of events which obviously troubles Mbeki. It was obviously the worst moment of his political life. It is not something that you get over easily, if at all.

What gives his newsletter this week such power is the criticism that the Nicholson Judgment received from the Supreme Court of Appeal. Mbeki, as is his wont, quotes from it at length. Correctly, considering that all five judges overturned the judgment in the harshest terms. In fact, I’ve often wondered if Nicholson himself didn’t realise his mistake very quickly after his own ruling. A month or so after the Mbeki recall there was a hearing in Durban as an application for leave to appeal the judgment. At that hearing, almost the first words out of Nicholson’s mouth were that he was “minded to grant the application” because of the importance of the case.

One of the most telling points in the SCA’s ruling is that Nicholson made findings against people who were not party to the case and did not get a chance to defend themselves. Mbeki, of course, was not a party to the case, as it was between Zuma and the NPA. Even if he did play a role, either directly or indirectly (through Ngcuka, whom he appointed), it was simply wrong in law to make a finding implicating him.

Mbeki also quotes at length from articles penned by Blade Nzimande and Daily Maverick’s Ranjeni Munusamy. He claims that they were both celebrating the victory of Zuma against him and were actually buying into a conspiracy that did not exist. Mbeki writes: “Thus did Judge Nicholson give a judicial stamp of approval to an allegation that some had sustained for some time that I and others in Government were part of a ‘political conspiracy’ which had interfered with the NPA falsely to charge Jacob Zuma, an allegation which even the ANC NEC as a whole had rejected.”

His point, essentially, is that this proves the conspiracy was actually against him, and not against Zuma. And it’s also worth reading that entire piece by Munusamy just to look at what else she said about Mbeki. Munusamy points out that Mbeki had had plenty of opportunities to act against those who were abusing the law to get at Zuma, but he chose not to. He could have disciplined Ngcuka for the famous decision to not prosecute Zuma “despite prima facie evidence of corruption”.

If Mbeki is going to claim now that he his hands were entirely clean, that he did no wrong, then he still has to answer why he did nothing. Just as he has to answer why he took no steps against Jackie Selebi, literally until the corruption trial against him started.

While Mbeki is obviously correct about the Nicholson Judgment, and the findings it made, he is probably wrong to blame it entirely for his defenestration by the ANC. Frankly, this judgment was really just the final straw, after a long process that saw Mbeki falling not just out of favour, but also inciting anger against him.

It’s well known that one of the people who argued the most for him to be removed from office was Cyril Ramaphosa, the man he had engineered out of front-line politics through the ‘Coup Plot’ claim. Mbeki had made many other enemies. But he had also simply refused to toe the line that the ANC was now delivering. He was no longer de facto in power, and he refused to acknowledge that. Mbeki didn’t come to NEC meetings, despite being invited. He had to be almost forced to accept Kgalema Motlanthe into his cabinet. And he gave every impression that he just didn’t care.

Bluntly, if it wasn’t for the Nicholson Judgment, something would have happened sooner or later that would have pushed the ANC over the edge. One way or another, the party would have eventually removed him. His real mistake had been to run for a third term as ANC leader in the first place. It was always going to be impossible to have him running the ANC and someone else running the country. Mbeki simply refused to acknowledge that, which meant the situation looked like what it was – a bid to simply stay on in power. It was that bid that ultimately led to him being kicked out. The Nicholson’s judgment was just a handy tool. Which should serve as a stark warning to any other ANC leader who considers overstaying their welcome. DM

Photo: Former South African president Thabo Mbeki talks to the media during a visit to the European Parliament in Brussels March 23, 2010. REUTERS/Francois Lenoir.