Political economist Ralph Mathekga says part of President Jacob Zuma’s problem is that he is stubborn.
NEWS ANALYSIS
Time is running out and talk of an exit strategy for President Jacob Zuma has begun in earnest, but he would be better off skipping the country (and never coming back) than trying to wangle an amnesty.
The full extent of state capture is coming into view and calls for Zuma to step down continue to ring out from all quarters.
But he has little choice but to cling to power for as long as possible — if he steps down, with 783 corruption charges pending against him and many more lined up, he faces spending the rest of his life in jail.
To entice him to step down — and to save South Africa from the further damage he might do — the idea of offering him amnesty has arisen.
Roger Southall, a sociology professor at the University of the Witwatersrand, writing on The Conversation website, said it’s unlikely that Zuma will be able to see out his term as president of the party, which ends in 2017, and he is likely to bargain hard, probably demanding amnesty for any crimes.
Journalist Max du Preez suggests in his column on News24 that the ANC, opposition parties and civil society should start preparing an exit strategy for Zuma now — a Zexit. Du Preez has said that he supports the idea that Parliament should adopt a Bill that would make it possible to indemnify a sitting president.
But an amnesty, especially where it overrules a court order, would be completely unconstitutional, said Cathy Powell, a senior lecturer in public law at the University of Cape Town. “The judiciary is meant to decide on matters of law. Parliament is separate. For Parliament to decide on a criminal matter is unconstitutional; it would be usurping judicial power,” she said.
And for this to succeed would require that Parliament’s conduct is not challenged in court, Powell said.
There is also an option to amend the Constitution but Parliament would need a special majority, and the margin differs depending on what section is to be amended.
“I imagine allowing Parliament to override a high court decision that criminal charges be reinstated would involve amending some of the rights in the Bill of Rights (in chapter two), but it could easily be argued that such an amendment impacts on section one, the section setting out the founding values of the Constitution,” said Powell.
She said allowing Parliament to override the courts could be argued to contravene the rule of law, which would mean that Parliament would have to pass the amendment with a majority of three quarters.
“Otherwise, such a constitutional amendment would impact on the right of people affected by Zuma’s corruption to get a remedy through court, either through a criminal process or through a civil process. The right of access to court is protected by section 34,” Powell said.
Amendments to the bill of rights requires a two-thirds majority in the National Assembly.
“As the ANC majority is well under two-thirds at the moment, it would need to get the buy-in of at least the EFF [Economic Freedom Fighters] to pass the amendment and, even then, it might get two-thirds but not three-quarters. So any attempt to indemnify Zuma through Parliament will be open to serious challenges.”
EFF spokesperson Mbuyiseni Ndlozi could not be reached for comment.
John Steenhuisen, the chief whip of the Democratic Alliance, said the DA would not agree with a proposed amnesty for Zuma as everyone should be equal before the law.
“I don’t think it’s up to politicians to grant amnesty. It undermines the rule of law and it creates a dangerous precedent where politicians think the law doesn’t apply to them. It’s just not correct,” Steenhuisen said.
“There is nothing in our Constitution that is absolutely protected from amendment — not expressly, anyway,” said Powell. “But overturning the rule of law more or less means overturning constitutional government in its entirety. There would be a huge fight.”
If Zuma is tried and convicted, the law provides for him to be granted a pardon at the discretion of the next president, but that is probably too high a risk to take.
“If Zuma were to face trial, the ANC’s dirty washing would be hung out to dry over a considerable period of time. So it would be as politically costly as it would be embarrassing,” said Southall.
It could be unavoidable because, even if the National Prosecuting Authority didn’t pursue Zuma, any person could launch a private prosecution against him.
Alternatively, Zuma could always try to sneak off, Powell said. “It would then be up to the political will of whoever is in charge to get him back. The extradition process falls under the executive … And a lot will depend on the government of that day, and how implicated they are.”
“It’s not just about avoiding jail time. Zuma is very stubborn,” said Ralph Mathekga, the head of political economy at the Mapungubwe Institute for Strategic Reflection.
“His projects succeed because the relationship between ordinary citizens and the state is one of mistrust. And that is historical. There is a notion that you can steal from government,” he said.
“The state is still suffering from a historical issue of legitimacy. There is no willingness to defend the state.”
Amnesty requires acknowledging one’s purported crime, but Zuma doesn’t believe he has done anything wrong, Mathekga said.
The easiest and most immediate recourse would be for the ANC to push Zuma out through its own internal processes. “But when he gauges the internal make-up of the party, he realises they can’t do it,” said Mathekga, adding that South Africans underestimate the extent of political patronage and how many people are involved.
“The stakes are very high. People are seeing this as an opportunity to gain access to resources now and in the future. It’s a big project,” he said.
“I think this is bigger than Zuma, no matter how he feels he has to march through. I think that, if you were to investigate this fully, it could disband government.”
Southall argued against an amnesty, describing it as a legitimate option only if it serves to end civil wars, halt killings and restore peace.
In any case, “an amnesty would not work, as Zuma appears to be just one part of an extensive Gupta patronage system”, he said, noting that the question is then whether to grant amnesty to all or just to those higher up.
Powell said the only way to root out the problems facing the government would be to institute control over how the parties work.
“There is no control on how party lists get drawn up or how the party works. There should be stronger control over who gets to the top of the party,” she said.