Solution That Violates Rule Of Law Is Disastrous

THE African National Congress (ANC) Youth League’s attack on the party’s deputy president, Kgalema Motlanthe, tells us two things.

First, the ANC is more seriously divided than anyone imagined even after the Polokwane punch-up.

Second, the Jacob Zuma camp is working itself into a reckless frenzy as it realises its man’s legal position is becoming more fragile. The attack on Motlanthe was astonishing not only for its presumptuousness, with a bunch of youngsters having the gall to denounce the second most senior figure in the party for trying todiscipline them, but also because they are all supposedly in the same Zuma camp.

It was the pro-Zuma crowd, with the Youth League prominent, who chose Motlanthe as the ANC’s alternative candidate for the national presidency should Zuma fail to survive his corruption case.

Now the same youths are vilifying him, in typically venomous language, for saying they should stop attacking the judiciary and other important democratic institutions.

So much for the vaunted loyalty and discipline of ANC members. So much, too, for the myth that the ANC is still a united organisation.

Not only did it split in two at Polokwane, but in the eight months since it has been writhing in a power struggle at provincial and regional levels that has driven hundreds of Thabo Mbeki supporters from office and out of contention for places on the electoral lists.

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Now we have this new evidence that the Zuma camp itself is split at the highest level.

This bespeaks a party in trouble.

The Youth League attack does not in fact come out of the blue. There have been rumours for weeks of growing tensions between Motlanthe and the Zuma camp.

As Zuma’s legal problems mount and his prospects of being able to dodge his day in court diminish, Motlanthe begins to loom larger as a rival. So he must now be “eliminated” by those who proclaim their readiness to “kill for Zuma”.

Which prompts the question of what has happened to the ANC that ithas allowed itself to degenerate in this way?

Is it not perhaps the same as has happened to many other liberation movements around the continent once their founding objective, that of liberation, was achieved?

That there is a loss of that sense of mission and idealism that once bound its disparate members together in comradeship, and all that is left now is the vehicle that got them there —— a vehicle to be seized and controlled to carry individuals to power, privilege and prosperity? If so, it means not only that the ANC is disintegrating but that it has lost its soul. This self-destructive behaviour may intensify if Zuma’s position weakens further.

Last month’s Constitutional Court judgement came as a great blow to the Zuma camp, for it marked the end of the road for his long legal campaign to prevent a mass of potentially damning documentary evidence in the hands of the National Prosecuting Authority (NPA) being admissible in court.

Now only one legal avenue remains, and that is to try to stop the case altogether. Two attempts are pending.

One was a high court application made last month to have the decision to prosecute declared unlawful. The other is an application for a permanent stay of prosecution to be made on November 25.

In line with the defence team’s own description of its approach as a “Stalingrad strategy” —— mea ing it will fight a rearguard action street by street every inch of the way to stop the case —— it is clear that even if Zuma should lose these applications he would try to start a new round of appeals, so delaying the trial until after next year’s election.

By which time Zuma would be president of the republic and the ANC could enact a law indemnifying a sitting president from being prosecuted.

But there’s a snag. In last month’s Constitutional Court judgement,Chief Justice Pius Langa noted that while he regarded the right of appeal as important, courts should not allow it to be misused to delay trials.

He laid down an injun tion that “all courts should discourage pretrial litigation . . . that seeks to delay the commencement of trials”.

That has increased the sense of alarm in the Zuma camp, which is why it is now switching its attention to what it calls “a political solution”.

This is gaining public attention, for it sounds like an easy way outof an embarrassing problem. But it is a misnomer.

It is not a solution, for there is no “legally and constitutionally tenable way”, as some suggest, to drop a criminal charge against a major publicfigure.

Any attempt would amount to a political deal that would violate therule of law, which is the centralpillar of our constitution and of any democratic system. A special commission, modelled on the Truth and ReconciliationCommission, which would exchange truth-telling for amnesty on thearms deal, has been mooted. But that would avail Zuma little, for thearms deal constitutes only a small fraction of the 16 charges he isfacing, which involve 400 separate payments totaling R4,2 million over 10 years from 1995 to 2005.Even a special law indemnifying a president from prosecution would be challengeable in the Constitutional Court on the grounds that it violated our Bill of Rights principle that “all are equal before the law”.

It has been suggested that the cou try’s prosecutorial guidelines may offer a way out, since they state that a pro ecutor’s duty is to prosecute a case —— unless “public interest demands otherwise”. But there is a huge difference between the “public interest” and “public opinion” —— especially public opinion confined to a particular political party.

Some in the Zuma camp are suggesting  that    prosecuting  Zuma  would  be against the public interest because it might provoke unrest. But itis they who are threatening to create the unrest.

It would be a most cynical violation of the rule of law to use such a self-generated threat as a pretext for dropping a criminal charge against a would-be president whose character should be exposed to the closest possible public scrutiny.  Those tempted by this   seemingly quick-fix idea should think carefully.

With the disbanding of the Scorpions, the huge pressure on the NPA and the orchestrated campaign to intimidate the judiciary, who in SA will ever again attempt to prosecute a prominent public figure?

Corruption, already rife, will become rampant. That is the road to destruction. My worst case scenario. My best case scenario would be for Zuma to step aside from the presidential race and have his day in court, leaving     Motlanthe, in   accordance with the Polokwane decision, to take over and lead the ANCand the country. 

Or if Zuma doesn’t really want that day in court, if he fears that the case against him is too forbidding, let him seek a plea bargain. He might then end up with a suspended sentence instead of the 15 years which is the statutory minimum sentence for the charges he faces.  That would prevent him from becoming president of SA, but he could, the party willing, still be president of the ANC.

By Sparks is a former editor of the Rand Daily Mail and a veteran political analyst.–Business Day.