MAY 9 2009 was a typically sunny day in Pretoria. The rand was trading at about R8 to the dollar — double its value now. But SA was still SA: essentially just another emerging market pulled down by the global economy as it went into a recession. SA’s democratic institutions were sound, despite the shenanigans associated with the governing party’s power battles of the preceding four years or so.
Heads of state — democrats and dictators alike — had gathered at the Union Buildings to witness the pageant of the swearing into office of one Jacob Gedleyihlekisa Zuma, who with effect from that moment was bestowed with the honour of being chief protector and ambassador of the nation’s Constitution and other grand ideals associated with the DNA of the “Rainbow Nation”. He lifted his right hand before then chief justice Pius Langa and said these words: “I swear.”
That was a commitment to defend and protect the Constitution, SA’s best product after a political deadlock that forced warring sides to sit around the table and design the legal framework on which our collective hopes and aspirations could rest. Zuma’s words were similar to those uttered by his predecessors when they took office — all the way back to Nelson Mandela in 1994.
On Thursday, in a dramatic moment, Chief Justice Mogoeng Mogoeng found Zuma to have “failed to uphold, defend and respect the Constitution as the supreme law of the land”. This was a surgical stripping from a president all those things associated with officialdom and leadership: integrity, credibility and indeed legitimacy. It confirmed that the emperor has no clothes.
Simply, Thursday’s events brought down a curtain on one chapter: that of an arrogant and petulant president who, from the parliamentary podium and other platforms, has kicked sand into the nation’s collective eyes, refusing to take responsibility for the spectacular mess that Nkandla had become.
His defence showed spectacular disdain for public institutions and the values of the nation of which he is head. But this attitude “boomeranged” against him in ways he could not have imagined.
Zuma’s prospects aside, there can be no coming back from this for the African National Congress (ANC) after such a dramatic drubbing that confirmed so many long-held suspicions about the party’s lack of moral and intellectual weight.
No doubt some will try hard to protect their leader. But the consequences for the party will be dire as, with the stroke of a Constitutional Court pen, Zuma has been found to be a constitutional delinquent.
What makes it difficult for the ANC to turn the situation around, or accuse the judges of waging a “counter-revolution”, is that Zuma had capitulated as the matter progressed through the court system, in effect pleading guilty by undertaking to pay some money back, and also agreeing that Public Protector Thuli Madonsela — who he had ridiculed before — had the powers to come up with legally enforceable remedies.
While the Constitutional Court judgment was remarkable in its political content, its full effects, especially in terms of what they mean about our institutional setup, may take ages fully to sink in. The political aspect of the case is the easiest to understand; others, including what the judgment says about the health of our democracy, the doctrine of separation of powers and such like, need deeper reflection.
On the ANC’s side, it is fast approaching the end of the road when it comes to the man it rammed down South Africans’ throats. And with a couple of other legal matters on the go, including the “spy tapes saga”, things can only get worse for the party. Judgment on that matter is expected in two weeks in the High Court in Pretoria, where the Democratic Alliance (DA) has started a case that is aimed at reinstating the arms deal-related corruption charges that were controversially dropped to allow Zuma to ascend to the presidency.
To make matters worse, legal challenges to his decisions as president, including the appointment of Berning Ntlemeza as head of the Hawks, could bring even more negative attention to the ANC and Zuma.
The major opposition parties, with their tails up after Thursday’s triumph, will milk the political crisis faced by the ANC for all it is worth. Their local government campaign script has been penned for them by Zuma and the ANC. They only need to pull out paragraphs from the judgment at opportune times. For cynical or logistical reasons, Zuma is yet to announce the date of the election, which by law must happen within 90 days of May 18, the anniversary of the last local polls. But the opposition is not waiting for him to officially fire the starting gun — they are moving in on him and the ANC.
The DA has indicated it will start impeachment proceedings. This move is highly unlikely to succeed, as it would need the ANC caucus to vote in favour.
But pushing for an impeachment could just be a trap for the ANC, so the DA can run back to court and accuse Parliament of not adequately or rationally dealing with Zuma’s apparent breach of his oath of office. Meanwhile, the Economic Freedom Fighters (EFF) have gone for the jugular, calling for an early general election, a smart ploy meant to drive home the issue of a political and institutional crisis.
As the ANC ponders how to escape the deep, dark hole it has dug for itself, it cannot say it was not warned. Many party leaders have cautioned against taking an ostrich-like approach to the Nkandla controversy and how the party’s arrogance could affect it in coming elections. But these warnings fell on deaf ears.
Former president Kgalema Motlanthe warned in 2012 of the dangers of the ANC strategy of relying on its numeral strength as a dominant party instead of the superiority of its arguments. His predecessor, Thabo Mbeki, pointed out that the collapse of parliamentary decorum, with the EFF and other opposition parties demanding that Zuma pay back some money, needed a “political solution”.
However, the ANC is manifestly unable to extricate itself from its Zuma quandary.
It is difficult for the party to effect a recall similar to the one that toppled Mbeki in 2008. The difference then was that Mbeki had officially lost control of the party at the December 2007 conference. By the time the idea of ending his tenure came up in 2008, Mbeki was a lame duck president waiting for his term to end in 2009.
Zuma remains head of the ANC’s national executive committee, which is packed with sycophantic followers, some of whom formed the bulwark that protected him in Cabinet and in parliamentary structures. To think they will recall him is to imagine them choosing to give up power, and the spoils associated with being the dominant faction. As long as the party continues to defend Zuma, it will continue to lose the bigger game, and will have to live with the tag of a government that is not in touch with the Constitution it helped create.
• Mkokeli is associate editor
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