/ 12 September 2008

Creating a case to bend the law

We have entered an extraordinary period. Not since the end of apartheid have the ANC-led alliance partners worked together with such a sense of common purpose. The collective resolve is awesome. Nothing will stand in the way of the goal: Jacob Zuma shall not stand trial.

But that such energy, focus and strategic commitment could be displayed when it comes to solving the problems of endemic poverty and dismal levels of skills and education that beset the nation.

The lobbying in favour of the ”political deal” is intense; it is happening on all fronts. Individual targets have been identified and individual lobbyists assigned the task of persuasion. It is undeniably rather nice to be the subject of the lobbying for once. I could get used to this game of role reversal.

The arguments that are put vary according to the target. Number one is that if Zuma goes on trial then the country will be rendered ungovernable, such will be the violent response. This is the pressure point that has been applied with success to some more credulous business leaders.

Though the prospect of short-term violence and instability would be harmful to business and the social fabric of the country, it might be better to suffer the short-term pain for the long-term gain of defending the principle of the rule of law.

The argument lacks credibility as well as integrity. There is little or no evidence that a large number of people feel so strongly about the matter. Perhaps it would be worth finding out. If there is violence, then the state must do its job and defend the rule of law, an opportunity President Thabo Mbeki may grab with relish. If not, then the Zuma-ites’ bluff will have been called.

South African Communist Party (SACP) leader Blade Nzimande has been talking about how a Zuma trial will bring the people out on the streets for a few years now. But I am far from sure that the SACP’s organisational disarray would allow it to organise a piss-up in a brewery, let alone a popular revolution of the sort that no doubt lives large in Nzimande’s imagination.

Hence the reliance on Julius Malema and his attack dogs. The ANC Youth League has been behind strikes at, for example, Eskom in recent weeks — and I wonder whether Cosatu is really that happy its role is being eclipsed in this way — but again I doubt if its power extends so far and wide and, again, perhaps it would be better to put it to the test and be done with it.

The second argument that is being put forward is that since a political critical mass within the ANC-led alliance insists that Zuma must, come what may, become president, a constitutional amendment will be pushed through to grant sitting presidents immunity. Preparations for such an amendment are under way.

Although there are many countries that have such a rule — and there is a half-decent case for such a rule — I know of no respectable democracy that has created the immunity to meet the immediate needs of any presidential candidate.

Moreover, the amendment would do enormous harm to South Africa’s reputation, in turn further constraining its potential for being an influential and progressive voice in international affairs. There will simply be no way of avoiding the headlines in newspapers around the world: ”Former noble liberation movement, the ANC, amends Constitution to prevent its new president from standing trial for corruption”.

The lobbyists pre-empt this concern by saying: ”Exactly, you see how bad it will be; to save the Constitution, and our reputation as a constitutional democracy, we must do a deal.” This is no less a piece of intellectual blackmail — it is just marginally more subtly constructed.

Moreover, I am not entirely certain the ANC would get the two-thirds necessary to amend the Constitution. It might now have 290 members of the National Assembly (just over 72%), but assuming the opposition holds collectively firm, which they might not, it would take only 23 ANC ministers to put principle before pragmatism to defeat the amendment.

With the list selection process already well under way, there must be at least 23 who know their political career is drawing to a close or who have nothing to lose for other reasons. So, again, the bluff might be worth calling.

Last, there is an attempt to put together a legal and political case that would be palatable to a broad range of opinion-makers and other influential stakeholders. Everyone has his price, intellectual or otherwise. The ”sensible left” lobbyists know, for example, that to people such as me various promises would be attractive — such as ending the assault on judges — but probably not sufficiently persuasive. The things that might shift one’s attitude to a political deal, such as the guarantee of a judicial inquiry into the arms deal, would be impossible to offer. But this is still a conversation that is worth having.

There are members of the ”sensible left” of the ANC putting this case, which makes one sit up and pay attention. They have little choice. They supported Zuma because they thought he would do as a replacement for Mbeki last year. But they hoped and expected that the courts would then rid them of Zuma this year.

This was a little naive; clearly they have a rather more optimistic assessment of the speed at which the wheels of criminal justice turn, not to mention a failure to appreciate the extent to which Zuma was willing to legally filibuster.

Hence, the debate has moved towards the ostensibly less toxic terrain of a ”legal deal” for Zuma. It sounds better than a ”political deal”, doesn’t it? It is premised on the proposition that there must be no bending of the law or the Constitution. It must serve, explicitly and clearly, the public interest.

Thus, attention turns to whether it would be in the public interest to permit a plea bargain whereby Zuma would walk away with a plea of guilty for a non-imprisonable offence, thereby clearing the way for him to glide into the west wing of the Union Buildings next year.

Since the relationship between the executive and the National Prosecuting Authority is always far more nuanced than most of the commentators have appreciated, here and elsewhere — something the Pikoli inquiry report might need to dwell on — there will be cases when it is appropriate for the democratically elected government of the day to inject its own view of the public interest into the decision-making process of the prosecuting authority.

Of course, the most ardent Mbeki-ites would most probably sooner nationalise the mines than willingly sign off on a congenial plea bargain for Zuma. This further complicates the situation.

But I suspect that a deal might be close at hand. Unless Justice Nicholson removes the dilemma in Pietermaritzburg, we had better begin to prepare ourselves for it, or at least in the meantime seek to extract as high a price for the bargain as possible.

A completely closed mind to such an arrangement might not be altogether wise. The establishment has done well out of democracy. But there is legitimate anger about the inequitable distribution of wealth. For the centre to hold, the centre must yield. Since none of the arguments in favour of a special deal for Zuma appear to connect directly with such a progressive imperative — if anything, the reverse — the case for such a deal has still not been made.