Judiciary, legislature, executive: What is Zuma planning?

The M&G’s Political Staff write that President Jacob Zuma’s second term will bolster his authority to sway the composition of the Constitutional Court and reorganise his crucial security team in the Cabinet, but the new legislature will not necessarily make his five years easier.

The judiciaryPresident Jacob Zuma will finally have his long-standing wish to influence and control the arm of state he perceived as interfering with his government – the Constitutional Court.

Deputy Chief Justice Dikgang Moseneke and fellow Concourt Judge Johann van der Westhuizen are due to retire during Zuma’s term of office.

They will join Justice Thembile Lewis Skweyiya, who held his retirement farewell in Braamfontein on Tuesday.

This gives Zuma, who will serve a second term given the ANC’s victory in the fifth general elections this week, an opportunity to tilt the scale of the apex court.

The three judges were all appointed by former president Thabo Mbeki and are constitutionally required to retire after serving a 12-year, nonrenewable term or on reaching the age of 70.

Moseneke is 67. He said on Thursday that to comment about his retirement would be premature.

Van der Westhuizen said: “I should be leaving by the end of 2015 or at the end of January 2016.

“An institution is strong because of its legitimacy, viability and sustainability and does not depend on individuals,” he said on Thursday. “The Constitutional Court is strong and its mandate and composition are clearly stated in the Constitution itself.”

Zuma and some in the ANC believe that some judges have projected the judiciary as an alternative “political power” to counterbalance the Zuma administration. The ANC secretary general Gwede Mantashe once even called judges “counter-revolutionaries”.

Moseneke was singled out in 2008, shortly after Zuma defeated Mbeki as ANC president. At the time Moseneke remarked: “I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people.”

Zuma said in 2009 that he would not appoint Moseneke as chief justice because of these comments. He overlooked him twice.

A judicial source said that Zuma might consider a woman for the position of deputy chief justice given the recent outcry about the lack of women on the Bench.

With Moseneke’s term ending, Zuma, like American presidents, will want a more executive-friendly deputy chief justice, which could also mean the court will then be dominated by a more conservative block.

Yet some believe that Chief Justice Mogoeng Mogoeng and Judges Johan Froneman and Sisi Khampepe, who were all appointed by Zuma, have not turned out to be the executive’s lapdogs.

But one judge said that with Moseneke out of the picture the Constitutional Court’s role in checking the executive and legislative power could be weakened.

He said the court could now be influenced by the executive, especially in matters concerning the government or the president.

The Democratic Alliance’s case to find out how the spy tapes were used to drop criminal charges against Zuma could end up in the Constitutional Court, whose jurisdiction has been broadened to go beyond constitutional issues.

Insiders say Zuma is not happy with assembly speaker Max Sisulu. (David Harrison, M&G)

Other judicial insiders are concerned about the Concourt being pro-government in its judgments. This follows Zuma’s remarks at the 2011 Access to Justice conference that judges must stay out of policy issues.

“Once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the executive area of government,” Zuma said, warning the judiciary that the executive has a popular mandate from the electorate.

Former Constitutional Court Judge Kate O’Regan also cautioned her colleagues not to be influenced by their frustrations regarding developments in the country when dealing with government policy.

Van der Westhuizen said on Thursday: “As long as the Constitution, as the supreme law of the land, is applied without fear, favour or prejudice, political pressure should be irrelevant.”

It was not the first time Zuma has expressed his discomfort with the powers of the judiciary, especially the Constitutional Court.

In 2011, Zuma admitted in an interview that he wanted to “change the powers of the Constitutional Court”, and two years earlier questioned the “excessive” powers of the court’s judges, saying they were not God.

“If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at it because I don’t think we should have people who are almost like God in a democracy,” he told Independent Newspapers a month before he became president.

The executive
Zuma will play the roles of a juggler, a slayer and an appeaser by firing incompetent sympathisers but, equally, repaying incompetent, influential supporters.

While wielding the axe, he will be mindful that his support, especially in his constituent base of KwaZulu-Natal, is waning and that the battle for the party presidency has started in earnest.

The axe is likely to fall on his trusted lieutenants in the security cluster.

He has nothing to lose – this is his last term – and an opportunity to strengthen his executive team.

But he needs to survive the punishing second term longer than his predecessor.

Nelson Mandela saved himself the pains of the second term, while Kgalema Motlanthe’s eight-month stint as caretaker president in 2008 is not considered a term.

The Mail & Guardian understands that Zuma will try to rebrand his controversial image, even if it means risking losing a few chums and making friends with old foes.

Party leaders, government officials and members of the national executive who spoke to the M&G believe that Zuma will make changes in the executive soon after his inauguration.

But the major thrust of the reshuffle will be in the security cluster.

He has been accused of preferring Zulus for the security portfolios, but insiders say he might unravel the cluster.

A minister said last month that Zuma has hinted several times that he was displeased with the security cluster ministers led by Justice Minister Jeff Radebe. But it is not clear whether he would fire him. Radebe is South Africa’s longest-serving minister.

The performance of Zuma’s national police commissioner, Riyah Phiyega, has not been impressive. Her short term at the head of the beleaguered police service has been mired in controversy, including her lacklustre testimony at the Marikana commission, her management style and her alleged attempt to defeat the ends of justice.

The ANC was scathing about Phiyega for “misleading” party officials about the Nkandla “fire pool”.

Zuma had four national commissioners (two acting) in his first term. Therefore, he might be reluctant to fire her but rather let Judge Ian Farlam, who is chairing the commission investigating the 2012 massacre of 34 miners, seal her fate.

An insider with intimate know-ledge of the police portfolio said Zuma was advised to get rid of her, although not to bring back her predecessor, Bheki Cele.

The former police commissioner led KwaZulu-Natal’s candidate list. But after his falling out with Zuma, it is not clear whether the president will include Cele in his Cabinet.

Zuma, according to an insider, wants a truce with Cele after firing the former top cop for the controversial police office-leasing contract.

Some believe Zuma is also not happy with Police Minister Nathi Mthethwa’s handling of the Mari­kana massacre and the security upgrades in Nkandla. However, it is believed, however, that the president still trusts the man who stood by him in 2005 when the ANC wanted to ditch him.

But Mthethwa will survive, according to those close to him in the ANC.

“If anything, he might move him to intelligence,” according to a government insider. “[Mthethwa] has done a lot for Zuma but, knowing the old man, that doesn’t necessarily remove Nathi from the firing line.”

State Security Minister Siyabonga Cwele could get the boot.

He is also, according to insiders, blamed for a lack of intelligence on Marikana and the perceived absence of an early warning gathering system.

Deputy Chief Justice Dikgang Moseneke, who retires during Zuma’s next term, is likely to be succeeded by someone sympathetic to the president. (Oupa Nkosi, M&G)

But he could survive for two reasons. Zuma retained him even after the president’s trusted superspies – Mo Shaik, Gibson Njenje and Geoff Maqethuka – complained about the minister’s lack of leadership. They were all shown the door.

Secondly, Cwele rose from “nowhere”, according to an ANC leader from KwaZulu-Natal, to a prominent number 31 on the ANC’s list of MPs. This is a meteoric rise considering that he was very low on the list in 2009.

An ANC and state security insider said Cwele “is gone, or [could] be reshuffled to a lesser valued department”.

The president was not happy with how Defence Minister Nosiviwe Mapisa-Nqakula handled the unauthorised landing of his friends the Guptas’ plane at the Waterkloof air force base last year. But Mapisa-Nqakula was defended by Mantashe, whose relationship with Zuma is said to be at its lowest ebb.

Zuma is expected to keep International Relations Minister Maite Nkoana-Mashabane, an influential minister who has the president’s ear.

Zuma also needs the support of his allies in the trade union federation Cosatu, the South Africa Communist Party and the party’s leagues. Therefore, Higher Education Minister Blade Nzimande and his counterpart in basic education, Angie Motshekga, are expected to serve in Zuma’s administration again.

Motshekga and Nzimande are key to Zuma’s support in the women’s league and the SACP respectively.

He also needs the support of the unions, and several of their leaders, including the health workers’ Slovo Majola, are on the ANC’s candidate list. Cosatu president Sdumo Dlamini said he was not in a position to reveal names but insisted the federation would push for more worker representatives to be given key positions.

“We would want to influence those key positions for the workers,” he said. “I have declined nomination, but there are a number of worker leaders who have agreed to serve. We hope that those people can be given responsibilities to further the interest of the working class.

“Of course, they are there on ANC ticket but we would want to see them being given positions of responsibility.”

The M&G reported last week that ANC chairperson Baleka Mbete is expected to be brought in as second deputy president, with the specific task of monitoring the government’s performance. A two-thirds ANC majority would be required to amend the Constitution to allow this.

He will also fight harder to ensure that the premiers key to his survival retain their positions.

The legislature
South Africa’s fifth democratic Parliament will be a shadow of what it was 20 years ago when the new crop of legislators take their seats later this month for its first sitting to elect Zuma as president.

Both the two largest parties in the National Assembly, the ANC and the DA, will include new, inexperienced MPs. MPs are beholden to party bosses, given that they are not directly elected by constituencies in terms of South Africa’s electoral system, and are unlikely to rock the boat.

Speculation is rife that the outgoing speaker of the Assembly, Max Sisulu, will not serve a second term because he has alienated Zuma and other party leaders on several occasions. But there are those who believe that he will be important for continuity and leadership, especially at a time when a rowdier new breed of MPs is expected to take their seats in the opposition benches.

Sisulu irked some within his own party, who were impatient with his apparent reluctance to preside over the assembly in a partisan way.

He is alleged to have fallen out of favour with Zuma after allowing a debate on the landing of the Gupta’s plane at Waterkloof.

More recently, others did not take kindly to Sisulu establishing an ad-hoc committee to look into the public protector’s report on the Nkandla upgrades, although his supporters insist this was done in consultation with the party leadership.

“He [Sisulu] did not play his politics well,” an NEC member sympathetic to Zuma said.

But Sisulu remains popular in the ANC. He is 18th on the party’s MPs’ list, and others have pointed out that he is from “struggle royalty”.

Sisulu’s deputy, Nomaindia Mfeketo, is not highly regarded either by the opposition or in some quarters of the ANC, who point out that it was under her leadership that the ANC lost Cape Town.

But Mfeketo’s supporters are lobbying hard for her to become the new speaker, pointing to the fact that she serves in the ANC’s national working committee and chairs its subcommittee on governance and legislature.

Looking outside the current presiding officers, Home Affairs Minister Naledi Pandor has been mooted as a possible successor to Sisulu.

“She is someone who can manage things like Nkandla,” said an ANC parliamentary source. “Max [Sisulu]was not keen [on gatekeeping], while Naledi put herself on the line in the Gupta scandal debate.”

Pandor is also senior enough to have authority over fellow MPs. She has served as deputy chairperson and chairperson of the National Council of Provinces (NCOP), which makes her understanding of Parliament valuable.

But being redeployed from a ministerial position to Parliament could be seen as a demotion, though the speaker is the third most senior in terms of the Constitution, should the president and deputy president resign.

With new MPs expected to include the Economic Freedom Fighters’ leader Julius Malema and former NPA prosecutor Glynnis Breytenbach as DA MP, ANC sources said Parliament needs a firm speaker.

The NCOP, Parliament’s second house, will need a new chairperson to replace Mninwa Mahlangu, who retired in the last term.

The ANC Women’s League is lobbying for its deputy president Nosipho Ntwanambi to replace Mahlangu. Here, Zuma needs someone who will balance the interests of nine provinces represented in the NCOP while putting the ANC first.

The ANC may well retain its chief whip, Stone Sizani. The former Eastern Cape ANC chairperson has only been in the position for 11 months. Unlike his predecessor Mathole Motshekga, Sizani is an ANC NEC member, which gives him some political clout over his MP colleagues. But some ANC sources however said he is unpopular because he has been “cracking the whip” to clean up the caucus.

Others, however, believe he has done a good job.

Election results with the M&G
It’s been an election of angst and indecision for many voters. Some decided to vote tactically to try to teach our politicians a lesson about democracy, others stayed away entirely and many more decided to stay true to their party of choice from previous elections. 

The Mail & Guardian went to print before the majority of the election results could be announced or trends could be observed with any certainty. 

You can also keep track of how South Africans voted in the national and provincial elections with our live election results map. Visit mg.co.za/elections2014.

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