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Articles
By
Richard
Calland
Accredited -
Unassociated |
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Creating A Case To Bend The Law: ANC
Lobbying In Favour Of "Political Deal" |
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Posted By Richard Calland September 14, 2008
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. |
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