Ever since the ANC conference in December the public and for the most part, the ANC has watched how ANC president Cyril Ramaphosa would address the departure of Jacob Zuma from the state presidency. At one point Ramaphosa took over areas of government, making decisions or initiating decisions or actions that would normally be left to the president. This gave the impression that Zuma may have conceded the ground to Ramaphosa and be readying himself to leave office, without any major conditions or unpleasantness. It should be remembered that when Thabo Mbeki was recalled from the state presidency, he made no demands whatsoever and simply acceded to the organisational call for him to resign.
Ramaphosa kept on repeating that nothing would be done that impaired Zuma’s dignity or humiliated him. This gave the impression that his departure was imminent, and that Ramaphosa would behave in a statesperson-like manner in ensuring that Zuma would make way without unnecessary pain being publicly inflicted by the new leadership. (Obviously, there are multiple ways of interpreting allowing Zuma to leave with dignity and without humiliation. To become an accused after being a president is humiliating, but that may be what the law requires).
All of this appeared to create the impression that Zuma was leaving and that Ramaphosa was simply managing the “transition” in a manner that reflected his experience as a negotiator where an opponent or fellow participant did not unnecessarily suffer a loss of dignity in order to achieve a goal. The main thing was to achieve the goal and what was necessary to achieve that had to be done, while implicitly it would not compromise the rule of law or include undertakings to Zuma that were unconstitutional. That is not to say that concessions were ruled out, but any concession to Zuma had to be weighed up against the constitution.
But these talks between Zuma and Ramaphosa, to whom the negotiations have been left, have dragged on for some time because they are described as “complex” and “sensitive”. The public and indeed the rest of the leadership of the ANC and its allies have been spectators while Ramaphosa and Zuma talk in order to overcome some obstacles that have not been publicly disclosed.
Clearly Zuma has not unqualifiedly agreed to leave before his term of office is over, otherwise, there would be no need for talks and he may well have left by now. At the time of writing, the ANC National Executive Committee (NEC) is due to meet, possibly to hear that Zuma will resign and also what concessions may have been offered to Zuma.
Should there be a price paid to remove Zuma before his term of office concludes? A compromise may be necessary or ethically permissible, given that state functioning is being impaired by this delay. But a compromise cannot be immunity from prosecution or disguised immunity. Zuma is reported to have said he did nothing wrong. No statement of the ANC or state leadership should be made where it appears to accept that what he did was in good faith. I am merely speculating for I have no idea whether this has been demanded by Zuma. The Constitutional Court and others found that he had betrayed constitutional obligations. No statement on Zuma’s departure should condone what he has done, insofar as it could entail conceding that all the corrupt or state capture activities were performed in good faith.
There is speculation that Zuma -- who presumably ought to be accused number one in a potential state capture trial -- will become a state witness against the Guptas and his son, Duduzane. That is a decision made between an accused who admits to his or her criminality and the prosecution. Immunity from prosecution results from full co-operation and full disclosure of all that was entailed in his or her crimes and that of those against whom (s)he testifies.
During the struggle, we had contempt for and ostracised those who gave state evidence for the apartheid regime. To give state evidence for a democratic state is a duty, but there is a special type of cowardice entailed in someone who is the chief or one of the chief accused deciding to turn on those who has been his partners in crime in order to avoid the punishment that is his due under the law. Whether or not it would include giving evidence against Duduzane, would not be surprising for Zuma is a person without any sense of shame.
But that is a decision that cannot be made by the ANC. If it were to happen it would be a decision of the state prosecuting authorities and there would have to be good reasons why he should not be an accused, why the case cannot be won without his giving evidence. If the case can succeed without his giving evidence, what justification is there for him to be a state witness?
Incidentally, being a state witness does not arise in the fraud, racketeering and money laundering charges (783 counts) that are likely to be reinstated, deriving from the period before they were withdrawn by then-National Director of Public Prosecutions, Mokotedi Mpshe in 2009. That case depends on a lot of documentary evidence and there are many witnesses, apparently ready to testify. Zuma is the only accused so that he would not have any option but to stand trial and if found guilty, he could well face a prison sentence.
It is said that one of Zuma’s demands or concessions he requests, described in one media report as “cosmetic”, is to have his legal costs paid by the state after he leaves office since he would be dealing with matters that happened when he was president. Certainly, if Zuma is charged by virtue of something that was decided on by cabinet or parliament he ought to be afforded legal assistance paid for by the state. But what reason is there for the state to cover costs for actions that have been fraudulent or entailed state capture? What duty of the presidency was entailed in ceding powers of the state to the Guptas? It would be an outrageous demand.
In any case, we know that Zuma has engaged repeatedly in fruitless litigation while president, litigation that has cost the state millions, taken to the highest courts only to concede there that he had no case. To hire someone like Jeremy Gauntlett SC (who appeared for him in the last stage of the Nkandla case), with junior counsel for one day, costs around R100,000, apart from the fees of attorneys. And Zuma is likely to want Kemp J Kemp there as well.
With regard to legal costs, when a president leaves office, if he is charged with criminal acts, whether or not these were committed while he was in office he is responsible for the costs that are entailed. Likewise, if he sues someone that is his personal responsibility, as it has been with former presidents Thabo Mbeki and Nelson Mandela.
If a president is without means, that person must apply for legal aid, like any other citizen. But Zuma is not indigent. He has a fully paid up luxurious home in Nkandla and reportedly he and some of his wives have other properties, here and possibly in Dubai. We have no idea how many cars he has. Tweets of Nomboniso Gasa (@nombonisogasa) point to the wrist watches he wears as an indication of his wealth. On 6 February 2018 she tweeted:
Whatever the source of his wealth, he has a lot of assets. Why should state monies be used to cover his court cases, when that money could be used for educational purposes or to meet other social needs?
If he realises that it is not possible to achieve immunity, by one or other means, he may try to bargain for pardoning should he be found guilty in court (and he may have raised that already in his talks with Ramaphosa). That is legally permissible, but it would send a very bad signal in terms of public perceptions of what Zuma has done, in a situation where we emerge from a period of lawlessness and graft. This ought not to be seen as a way of maintaining his dignity. The law must apply equally to the highest and the lowest.
What is at stake in this transition?
For Cyril Ramaphosa and the ANC removing Zuma is important in order to enter a new phase with regularised state functioning. It is also important for the ANC’s electoral prospects that Zuma leaves public office, since his actions have impacted very negatively on the organisation’s electoral performance.
It is said that Ramaphosa has to safeguard ANC unity. Understandably, he does not want to preside over a further split or breakaway. But the reality is that ANC unity of today is not built on common principles, but rather desire for positions and wealth. Many Zumaites are reported to have already crossed over and pledged allegiance to Ramaphosa and others will do so once Zuma goes.
The problem that Ramaphosa faces is not to maintain that unity, but transform its content, alter what it means to be in the ANC, with a return to democratic values, respect for human dignity as enshrined in the constitution in whose elaboration he played a crucial part. If the ANC hopes to recover its previous standing it needs to be at the centre of democratic debate and the reinvigorating of democratic political cultures.
Seeing Zuma leave the Union Buildings may well be a cause for celebration amongst the public at large. But it is important that nothing is done in ensuring his departure that sullies the legal system, that represents a compromise that undermines constitutionalism or democracy, directly or indirectly. People need to see that a new way of governing has started. Concessions that suggest bypassing normal processes and special favours not given to any previous president would suggest that the change has been inadequate. The Ramaphosa-led ANC, if it hopes to win respect needs to resist illegitimate demands and devote their energy to rebuilding democratic life and state institutions, so that these can serve the people of the country.
This article first appeared on Creamer Media’s website: polity.org.za
Raymond Suttner is a scholar and political analyst. He is a strategic advisor to the Dean of the Faculty of Humanities, University of Johannesburg, a professor attached to UNISA and (until the end of March) Rhodes University. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His most recent book Inside Apartheid’s prison was reissued in 2017. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner