South Africans are increasingly asking themselves how we got into the fix we are in and how we are to not only get out of it, but do so with the confidence that our democracy will continue to protect our freedoms and grow Africa’s greatest economy to provide the prosperity we need. By WILMOT JAMES, MP.
Wilmot James is a Member of Parliament and Spokesperson on Health for the Democratic Alliance.
In answering the question I take my cue from the American historian Arthur Schlesinger Jr who, in his classic The Cycles of American History, examined both the qualities of personality that make for a vigorous presidential incumbent and the institution of the Presidency itself, which in the US, as it does here in SA, derives its functions from a constitution.
Schlesinger compared Jimmy Carter with Ronald Reagan. The latter, he wrote, was “no student of public affairs … did not work nearly as hard” nor knew “nearly so much” but Reagan “understood the Presidency as Carter never did”, which was that an “effective president must meet two indispensible requirements”:
- First, to point the nation in one or another direction. Nelson Mandela pointed the nation towards unity under the Constitution. Thabo Mbeki divided the nation but pointed it towards economic growth in the context of a continental African Renaissance. But Jacob Zuma has no destination other than his own survival in office in order to stave off time in jail; and,
- Second, to explain to the electorate why the direction the president proposes is right for the nation. Politics is ultimately an educational process. Mandela knew that speech was an important stamp of leadership. His best speeches had a structure, a critique and an offer, delivered with monumental moral authority. For Mbeki, speech was an opportunity to lecture and dismiss, even excoriate, his opponents. For Zuma, speech is a disagreeable chortling obligation most painful to the ear.
The absence of clarity of vision to which a vigorous leader devotes his or her energy, as we have with the uninspiring Zuma, are deeply regrettable lapses precisely because the separation of powers that define the three spheres of the democratic state – lawmaking (Parliament), law adjudicating (Courts) and law implementation (Executive) – tend naturally towards inertia. In South Africa, only the courts today have vigour. Parliament is weak and ineffective. President Zuma lacks clarity of vision, is short on determination of purpose, has little moral sense and lacks practical diplomacy to get the job done.
This is despite the fact that unlike the US system, our Presidency as an institution is much stronger, at least on paper. Because the South African president is indirectly elected through Parliament in the closed-list pure proportional representation system, the majority African National Congress (ANC) Cabinet led by an ANC president can, especially when one has a pliant and weak Speaker, as we have today in Baleka Mbete, control Parliament. (Her predecessor Max Sisulu led a momentarily resurgent Parliament, but paid the price for his good sense.)
In the President’s Office resides the National Development Plan (NDP), run by Deputy President Cyril Ramaphosa. The office has a very skilled and experienced minister in the form of Jeff Radebe, who oversees the Department of Monitoring and Evaluation (DME) and Government Communication and Information System (GCIS). Such substantial administrative capacity could turn the constitutional powers vested in the president virtually into executive orders on a scale that could make our Presidency the envy of others.
Still, with such considerable power over policy, on a budget 10 times that of Mandela’s, Zuma has failed to set the course for the nation. He lacks the power to persuade, which is why instead of having one economic policy, we have four: the Presidency’s NDP, the Industrial Policy Action Plan (IPAP) of the Department of Trade and Industry, the Economic Growth Path (EGP) of the Department of Economic Development, and Treasury’s fiscal efforts to responsibly balance the books for sustainable growth.
With his chairman-of-the-board style, Zuma reduces policy ideas to the lowest common denominator to achieve a consensus stripped of substance by which everyone in their anti-intellectual comfort zone can live.
Perhaps it is that Zuma does not understand that his office is a constitutionally ordained vehicle for realising the national interest, which is to fight poverty and inequality and advance human rights. Instead, he places his own survival and familial well-being ahead of the national interest, by using his office and Cabinet to stack pliant beneficiaries of his patronage to watch his back, fleece the state while the going is good and manipulate outcomes in his self-interest. Finally, he lacks the resolve to defend the Presidential Office against the choices pressed by others with interests of their own, of which the notorious Gupta brothers are the most brazen but not the only examples.
So how did we get here? We should start in 1910 to get a real sense of the continuities and discontinuities of high office, but in the ANC presidential lineage it is with Nelson Mandela. ‘I
“In Mandela one senses,” Robert Schrire wrote in a prescient piece published in Leadership magazine in 1998, “the politics of joy and hope. This is notably absent from Mbeki. Playing valet to an official saint would be an exercise in frustration for even the most humble and unambitious of men – and Mbeki is neither … one senses a deeper well of frustration and bitterness.”
Under Mandela, the Office of the President was less about running government – which Mbeki did – and more about nation building by drawing elites into a single moral universe. Mandela’s office was relatively small and supported his natural role as a statesman. The Reconstruction and Development Plan (RDP) administration, led by Jay Naidoo, was at first placed in his office but soon abandoned because it had an impossible policy co-ordinating role. The RDP office annoyed Thabo Mbeki, who was then deputy president, because it was a competing centre of power.
Mandela admired the Westminster system and stood by the separation of powers. He accepted the judgments of the courts and, the first for a sitting president, because he was a lawyer and believed in the principle of equality before the law, presented himself, “blood boiling” as he put it, to be grilled in the Pretoria High Court in March 1998 about his decision to set up a commission to investigate racism, graft and nepotism in rugby under the watch of Louis Luyt.
Mandela deeply respected Parliament, attending all sittings when in the country, and being well prepared to answer questions.
Under his watch a Constitution was concluded.
But Mandela was not without his faults: Mbeki introduced cadre deployment under (Mandela’s) his watch. His Mafeking speech in 1997 was reactionary. He was too much of a Victorian gentleman to confront the fact that sex was a vector for HIV transmission.
Schooled in exile, and with a very different temperament, Mbeki created, as Schrire phrased it, a “style of action which protects him from conflict situations. He clearly prefers to operate behind the scenes where he is an acknowledged master of the tactical thrust. He has created a network of loyalists who have penetrated all levels of the ANC and the government and who protect him from outside pressures.”
Mbeki sidelined Parliament and treated the opposition with derision.
He set up an Imperial Presidency. He seized portfolios when it suited him. He ran the economy and foreign affairs, got the former right, to the chagrin of Cosatu and the SACP, but spoilt the latter with his failed quiet diplomacy in Zimbabwe and AIDS dissidence on the global stage. His office did their own portfolio research which he used to interrogate his ministers, using fear rather than trust to get the job done. Cabinet ministers were kept in line by Mbeki’s hatchet man, the homourless Essop Pahad.
But Mbeki’s most egregious legacy, from which Zuma learnt a great deal, was to manipulate the justice system and divide the civil service, particularly in the spheres of intelligence, police and military, into “us and them” camps. He appointed Zuma, whom he did not respect, as his deputy to keep him quiet, but then fired him for alleged corruption, unleashing a mighty battle for political power in the heart of the state that he lost at Polokwane. Schrire famously predicted (in 1998) that Mbeki would appoint a deputy president that would be someone who would be no threat to him, that “it is possible [he] will be Jacob Zuma” and that whomsoever is appointed would not make for “a credible future president and may shatter confidence for the future”.
And so he did. Zuma used the Polokwane agenda and his intelligence background as head of MK intelligence to strengthen Mbeki’s Imperial Presidency even further. He had dirt on just about everybody who was in exile with him. It was on his watch that the atrocities in the guerrilla camps, as reported to the Truth and Reconciliation, happened. It was for this reason that when Jacob Zuma returned from exile Mandela refused at first to see him, outraged as he was by the stories about the camp executions while Zuma was in charge.
Zuma enlarged his 2009 Cabinet and packed it with many loyalists. His office interfered with the operational work of the Directorate of Public Prosecutions and the South African Broadcasting Corporation (SABC), our public broadcaster. State facilities were put out for rent. Procurement tenders were rigged to benefit friends and cronies. Government departments pursued projects not for the benefit of citizens but to enrich Zuma and his loyal supporters. Our patrimony was sold to the highest bidder, particularly the Peoples’ Republic of China, who are sucking us dry of rare minerals while they hoard their own.
Under Zuma, the presidential staff have increased their scale of power to the level last enjoyed under PW Botha. They control the presidential machine, determine access to Zuma, regulate the flow of information and determine the priorities. Officials have more power than ministers. Recently, the Office of the President cemented its grip by providing oversight and co-ordination between the state-owned enterprises already captured from the bottom up with the full connivance of the Minister of Public Enterprises, the smooth-talking Lynne Browne.
So how will Zuma go? On May 27 the Hawks sent a letter to Finance Minister Pravin Gordhan which he answered in some detail. Rumours circulated that Gordhan was facing imminent arrest, which made everyone sit up and the markets nervous. But the head of the Hawks, a General Berning Ntlemeza, calmed the waters by declaring that Gordhan is not a suspect in the investigation.
In a country where the rule of law is solid and police possess integrity, that would be the end of the story. Finish and klaar, as they say. But here on the southern tip of the African continent someone at the Hawks changed their mind and requested Gordhan to come for an interview. He refused to go, and rightly so.
Tom Bingham writes in The Rule of Law that “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”. No charges were led against Gordhan, only discretionary threats. Trevor Manuel was correct when he remarked that the Hawks were abusing their power by kicking ministers – a ranking one at that – around. It was Zuma’s Imperial Presidency at work, where a police general of demonstrably dubious integrity thought he could circumvent the certainty of the rule of law by rattling an elected public representative who, in stature, is probably the third most senior, after the president and deputy president, in Cabinet.
In a country where the rule of law is but recent and superficially embedded in society, it is necessary to repeat the principle that, as Bingham puts it, “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”. Gordhan was never charged publicly for anything and should therefore benefit from the protection of the law against abuse of power, persecution and harassment.
Instead of going after Gordhan, who is working to stop corruption and the rapacious thievery that abounds, a good thing in the national interest surely, what the Hawks should be doing, following the rule of law, is reintroducing the charges brought against Zuma before he became president. In a longstanding case brought by the Democratic Alliance (DA) to review, correct and set aside the decision to discontinue the criminal prosecution of Mr Zuma according to the charges contained in a December 2007 indictment, the Gauteng High Court found that the Acting National Director of Public Prosecutions, Advocate Mokotedi Mpshe SC, made an “irrational decision” and ignored his oath of office by withdrawing – under duress – the charges of fraud, racketeering, money laundering and corruption leveled against President Zuma. “Mr Zuma”, the Court declared on April 29, 2016, “should face the charges as outlined in the indictment”.
Instead of pursuing the court’s legal injunction to reintroduce the charges, the Hawks have become a brazen part of the factional battles in the ANC. They are part of the Zuma camp and are failing in their constitutional duty to reintroduce the charges against him. Instead, they are abusing their authority to rattle and harass Gordhan. Acting in accordance with legal prescripts rather than the exercise of factional discretion requires that President Zuma “face the charges as outlined in the indictment”.
Zuma has a compelling reason to serve out his term of office, and to seek immunity against prosecution from his successor after the 2019 national elections, for that is how he will stay out of jail.
There are three other means of removing him from office, two of them parliamentary.
The first is by invoking Section 89 (impeachment) of the Constitution, which requires that the National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its MPs, removes the president from the office but only on the grounds of (a) serious violation of the Constitution or the law; (b) serious misconduct, or (c) inability to perform the functions of office. Anyone who has been removed from the Office of the President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.
With a 66.6% voting majority requirement, impeachment is impossible to attain in the current environment, which is why the DA only tried it once.
The second is by invoking Section 102 of the Constitution where the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the president and if it succeeds the president and the other members of the Cabinet and any deputy ministers must resign.
Either of these requires that significant numbers of ANC MPs vote with the opposition as a whole, Section 89 requiring significantly more than Section 102.
The DA has tried a motion of no confidence at least twice, the first when Lindiwe Mazibuko was parliamentary Leader and the second under Mmusi Maimane. Required is a simple majority, impossible to obtain in the current environment, but with the South African Communist Party (SACP) coming out against Zuma, their members who double up as ANC MPs may be emboldened to act on principle as Cosatu and ordinary ANC MPs begin to follow the winds of change which, when they come, tend to come fast.
The third is the Mbeki option, where the ANC as a party recalls Zuma. For the anti-Zuma faction, which is growing, to summon the courage to tell Zuma his time is up will require a significant shift in the ANC’s own calculus of the mounting liabilities he brings to the balance sheet and to successfully work him out. This is hugely risky, as it will be seen as a coup, and if fails, the anti-Zuma faction will be toast.
The least desirable outcome, from a national interest point of view, is for the responsible members of the ANC of whom they are a crucial mass to contain Zuma while he serves out his term and for the ANC to elect either Nkosana Dlamini-Zuma, the ineffectual chairwoman of the African Union, the Zuma camp’s candidate because she can be pressured to give her former husband immunity and protect the wider Zuma family’s interest; or Cyril Ramaphosa, who by his record and convictions has the national interest at heart and can meet Schlesinger’s two indispensible requirements of leadership: (1) he can point the nation towards an achievable destination, and (2) he has the ability to explain why his destination is the way to go.
That Ramaphosa is now seen by Jacob Zuma as a threat was revealed in a recent parliamentary sitting when, asked whether he agrees with his deputy president’s assertion that “government is at war with itself”, he hit back, his anger etched on his face, visible to the opposition benches, scowling, using his last name only, “why don’t you ask Ramaphosa?” No one dared rise on a point of order, as they usually do from the ANC benches, to rebuke the president for not using the civil salutation, the Honourable Ramaphosa. Everybody noticed. The campaign for the next ANC president had begun.
From the opposition side, the DA now governs South Africa’s big cities (except for Mangaung, Bloemfontein and eThekwini – Durban), significantly enlarging our footprint and putting the Gauteng province (the 10th largest economy in Africa) electorally in our sights. If the ANC fails to survive what appears to be the biggest crack to emerge in the Tripartite-Alliance since 1994 there may be opportunities for national working arrangements of the forces that moderate towards the middle of the political spectrum.
The Economic Freedom Fighters did not grow organically by any stretch of the imagination between 2014 and 2016 enough to become a national threat to the ANC by 2019 and they may therefore seek working arrangements with the populist nationalists, wherever they may be – largely on the ANC’s right is my guess. Julius Malema, after all, wants to be president and not Leader of the Opposition. DM
This is an extract from a lecture given in Cape Town to the visiting MBA class of the Wharton School of Business, University of Pennsylvania, Philadelphia, 15 September 2016.
Photo: South African president, Jacob Zuma during the State Of the Nation Address in Cape Town, South Africa, 12 February 2015. The State of the Nation address was disrupted by the EFF resulting in the party being ordered out of the chamber by security forces. EPA/RODGER BOSCH/POOL