Zuma and the Zugzwang
Tony Leon, DA
A recent biography of Thabo Mbeki suggested that the President is a master strategist and tactician.
However, after more than a weeks silence over the Zuma crisis, the President resembles a chess player who is in the "zugzwang" position.
This is a position in which a player has to move but he can only do so with loss or severe disadvantage.
So, while the nation and the world wait for his move, he has no good place to go.
Certainly the Deputy President has no intention of resigning on his own.
He made that clear in his evasive performance in Parliament this week.
If President Mbeki dismisses Zuma, as he should, he will face the wrath of major constituencies in his party.
If he does not dismiss him, or passes the buck to the judiciary by waiting for the appeals process to unfold, the President will have failed the nation, our Constitution and the expectations of the wider world.
That is politics. There are no easy choices, and you sometimes have to do difficult things.
Whatever the Presidents decision, however, what must be exposed and debunked are some of the defences which Jacob Zuma and his supporters have erected around him.
The Deputy President has claimed that he is a victim of a trial by the media, and that he has never had a chance to face the allegations against him.
There is only one way for him to clear his name. He should be granted his wish. He should be charged by the National Prosecuting Authority and defend himself in a court of law.
There were once other options.
In 2003, when then-National Director of Public Prosecutions Bulelani Ngcuka announced that there was a prima facie case of corruption against Deputy President Jacob Zuma, but that Zuma would not face prosecution, the DA suggested: "...if he is innocent of any wrongdoing he should sue the National Prosecuting Authority and relevant media for defamation".
But the Deputy President took no such action. Nor did he take the step of testifying before the Hefer commission, when he could have strengthened the case against Ngcuka and the Scorpions by proving his innocence.
All the Deputy President is left with is the claim that he is "innocent until proven guilty".
But his argument has three major weaknesses.
1. Schabir Shaik could not have been found guilty unless the Deputy President had also committed acts of corruption.
The definition of corruption, according to South African law, is that it involves two parties.
In order to prove the guilt of either of the two, it is necessary to show that there was an improper relationship between them, in which both were participants.
That requirement applies whether or not both are charged with a crime.
Therefore, to decide whether Schabir Shaik was guilty of corruption, Justice Hilary Squires had to first determine whether the Deputy President was party to a corrupt relationship as well.
On the second count of corruption, for example, Squires considered the defences argument that Zuma had not done anything to promote the interests of Thomson-CSF in the arms deal, and that therefore neither Shaik nor Zuma had contravened the Corruption Act (94 of 1992).
"If a prize were awarded for tenacious ingenuity", Squires declared, "then this argument would be a strong contender. But a period of careful consideration, in our view, shows it to be fallacious".
He then carefully explored the evidence and testimony, and concluded that Zuma had indeed participated in an agreement to receive money via Shaik from Thomson-CSF in return for his protection and promotion.
In effect, while only Shaik was pronounced guilty, both had broken the law.
A few more excerpts from Squires's judgment reinforce this conclusion:
"These four episodes show in our view that Zuma did in fact intervene to try and assist Shaik's business interests...it clearly shows...a readiness in both Shaik to turn to Zuma for his help, and Zumas readiness to give it".
"While the evidence plainly shows, in our view, Zuma's preparedness to intervene or protect the Nkobi business interests and Shaik's readiness to ask for it, the essential issue is the existence of a causal link between Shaik's admitted payments to Zuma and this sort of assistance by Zuma".
"If Zuma could not repay the money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government-contracted work, which is what Shaik was hoping to benefit. And Shaik must have foreseen, and, by inference, did foresee that if he made these payments, Zuma would respond in that way".
Reading these passages, it is impossible to understand why Jacob Zuma was not standing in the dock alongside Schabir Shaik and the other accused.
Indeed, the National Prosecuting Authority may eventually prosecute the Deputy President.
But whether the Deputy President is charged or not, the Squires judgment indicates clearly that he violated the Corruption Act.
Thus, while Zuma must be presumed innocent of any crime until he is charged and convicted, he is not-and cannot be-presumed innocent of any wrongdoing.
2. Taken to its logical conclusion, the Deputy Presidents argument is absurd.
If a Minister or a Member of Parliament were seen killing or raping someone, that person would be immediately suspended or expelled, regardless of whether he or she had been pronounced guilty in a court of law or not.
This logic was applied by the ANC itself in suspending Beaufort West municipal manager Truman Prince from his membership of the party for six months after he was shown on national television soliciting child prostitutes.
Prince was not charged or found guilty by a court of law, but was nonetheless adjudged to have brought the party into "disrepute".
The DA believes that the ANC waited far too long to act, and that Prince should also have been fired as municipal manager for his behaviour. We also believe that it should have applied the same reasoning in dealing with its Travelgate MPs, who still sit in Parliament after being charged and/or convicted.
Nevertheless, in the Prince case the ANC followed the principle that those who hold public office have political responsibilities as leaders over and above their legal rights and obligations as citizens.
The same logic must apply in the case of Deputy President Jacob Zuma.
He enjoys the same constitutional protections as every other South African. Yet as the nations second-in-command, he must also uphold certain constitutional responsibilities.
Section 96 (2) of the Constitution, which concerns the conduct of Cabinet members and Deputy Ministers, states:
"Members of the Cabinet and Deputy Ministers may not -
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person".
The findings of the Durban High Court indicate clearly that the Deputy President violated these conditions.
The Constitution does not intend that such violations must be proved beyond a reasonable doubt in a court of law.
There are no criminal or civil statutes, for example, to deal with behaviour that is "inconsistent" with public office or that exposes public officials to the "risk" of conflicts of interest.
These are matters of political judgment, not legal judgment. So the argument that the Deputy President is innocent until proven guilty in a court of law is irrelevant.
The rights Jacob Zuma holds as a citizen are separate from the obligations he must fulfill as Deputy President. And he has clearly failed in those responsibilities.
3. Zuma is accountable to the people first, not the courts.
Jacob Zuma was not placed in office by the judiciary. He was appointed by the President, who was in turn elected by Parliament, whose members were elected by the voters.
Like all public officials, he has to obey the law, to uphold his oath to the Republic and the Constitution. But he also has to honour what we might call his contractual obligation to the people.
Indeed, the ANC never tires of arguing that its massive majority in the April 2004 elections represents an endorsement of its "Peoples Contract" for South Africa.
Regarding the fight against corruption, the "Peoples Contract" states that in exchange for the votes of the people, the ANC will:
"Ensure efficient functioning of all anti-corruption structures and systems including whistle-blowing, blacklisting of corrupt companies, implementation of laws to ensure exposure of, and action against, private sector corruption, and quicker processes to deal with any corrupt civil servants and public officials".
The "Peoples Contract" also includes several other promises dealing with corruption in a more general sense.
Of course, the "Peoples Contract" is a political manifesto, not a legally enforceable document.
But that is precisely why the Deputy Presidents argument that he is "innocent until proven guilty" must be rejected.
He and the party he leads have made political promises to their voters, and to the public in general, to take swift action against corrupt public officials.
The Deputy President re-iterated that promise in Parliament this past week when he spoke about the governments "war on corruption".
The question of whether he is living up to that promise is not one that falls to the courts to decide.
Indeed, if every political promise, and every political act, had to be subject to the judgment of the judiciary, democratic politics would end as we know it.
Rather, judgment lies in the hands of the people, their elected representatives, the Deputy President and ultimately the President himself.
If Zuma stays in office, the ANC will have broken its contract. The shadow of illegitimacy will fall across the Presidency and the entire government.
The only way to save the governments image at home and abroad is for Zuma to resign or be dismissed.
In sum, the fact that the Deputy President has not yet been found guilty of a crime does not suffice to prove that he should continue in his office.
There are many people both inside and outside of the ANC who suspect that the Deputy President is the victim of a setup. There are, it is said, many political rivals within the ruling party who do not want to see Zuma succeed Thabo Mbeki as President.
As the poet T S Eliot once wrote: "The last temptation is the greatest treason: to do the right thing for the wrong reason".
However, the motives of Zuma's accusers have no bearing at all on the question of the Deputy Presidents guilt or his political future.
Whatever the fate of Jacob Zuma, it is clear that the arms deal saga is far from over.
Indeed, the Shaik judgment reinforces the public perception that there is an urgent need for a judicial commission of inquiry into the arms deal.
Richard Young, the businessman whose company was shoved aside when Shaik's company won the government contract to provide control systems for the new Corvettes, said in a radio interview on SAfm this week:
"...what came out in the [Shaik] trial was not only Thompson using the offices of Schabir Shaik and Jacob Zuma, but theres a lot of evidence which was only alluded to in the judgement but it became clear in the trial itself that they had far, far deeper tentacles into the government... they had their tentacles right into the South African Ambassador to France [sic], that's Barbara Masekela, they had secret meetings with Thabo Mbeki in Paris, they had a range [of] people like Yusuf Surtee who we know is really a connection of Nelson Mandela, so theres a number of resources that they used to get right into the decision making process at the highest level, that's far, far deeper, far more extensive and actually far more serious".
The merits of these accusations, alarming though they may be, can only be tested in a formal judicial commission of inquiry that leaves no stone unturned.
Establishing such a commission must be the Presidents next responsibility-after he has dismissed the Deputy President.
If he fails to do either, the fight against corruption in South Africa will be lost.
With acknowlegement to Tony Leon.