Chief Justice Mogoeng Mogoeng and President Jacob Zuma — PICTURE: ELMOND JIYANE
Last week’s constitutional court ruling against President Jacob Zuma represents a crisis for the country. This is not because, as has been widely held, one man has fallen foul of the law.
The real crisis is that two powerful forces have collided. Constitutional democracy has, for the first time, engaged a new enemy — Zuma’s shadow security state, a force which has been quietly but relentlessly preparing itself for battle for almost a decade.
Until last week, Zuma’s shadow machinery co-existed uneasily in its host, the constitutional democracy that was born in 1994. The judgment delivered by chief justice Mogoeng Mogoeng changed that and now there is a fight to the end.
At the heart of the shadow state is Zuma, a president whose relentless focus is the growth and retention of his political power, at the expense, if necessary, of the law and the basic tenets of constitutionalism.
It was ushered into existence in September 2008, when the ANC’s national executive committee (NEC) spent two days deliberating a court judgment. After its deliberations, it issued a statement heavy with false sobriety to the effect that it had decided to recall incumbent president Thabo Mbeki.
Zuma, who had defeated Mbeki to become ANC president at the party’s Polokwane conference 10 months earlier, addressed the nation.
“The country needs a strong and united ruling party at the helm of government, capable of galvanising support for the government’s development agenda.
“As the ruling party we need to sustain the confidence of our people in the ANC and its government. Once this level of confidence is weakened, the ANC has no alternative but to take action.”
The court judgment in question, by Judge Chris Nicholson, had set aside the National Prosecuting Authority’s decision to pursue criminal charges against Zuma, saying this had been compromised by political interference.
The acting head of the prosecuting authority, Mokotedi Mpshe, had been fed secret recordings of Scorpions officials discussing the timing of the prosecution. It was clear from their language that they favoured Mbeki over Zuma.
Nicholson believed he had no option but to rule that the charges against Zuma were not valid.
In January 2009, Nicholson’s judgment would be overturned by the supreme court of appeal in perhaps the most scathing verdict ever delivered by that court.
The court’s then deputy judge president, Louis Harms, stated that “for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law.”
Nicholson’s ruling “was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.”
But the horse had bolted. The ANC’s NEC called no meeting to discuss this judgment.
The party’s obeisance before the law in the instance of the Nicholson judgment was exposed as mere opportunism — the real programme was the relentless march to power of the party’s Zuma faction. They had recognised that the judgment offered them an opportunity to strike against Mbeki and they had taken it.
The Zuma era would not be one of laws so much as one of taking and holding power against all comers, rules notwithstanding.
In the heat of the Polokwane conference, Zuma had taken the first step to secure himself against removal from office. The party passed a resolution making it mandatory that the president of the ANC be the party’s choice for president.
To remove Zuma from office would require that he be removed as ANC president, an event which could only occur at an ANC conference.
In any event, the slate-style canvassing for NEC positions at the 2007 conference had led to a Zuma-supporting majority on the party’s leading structure between conferences.
With the party structures in hand, Zuma turned to his next priority — inoculating himself against the possibility of criminal prosecution by taking hold of the country’s security machinery.
After Mbeki was recalled, Zuma did not immediately take power, handing this duty to Kgalema Motlanthe, who would serve for less than eight months.
This was probably done for two reasons. The first was that there was — and remains — legal uncertainty about whether or not a short period of service as president such as this would constitute a “term” of office. Zuma did not want to serve two terms that consisted of eight months until the 2009 election and then five years until 2014. He wanted two full five-year terms.
The second reason was that Motlanthe served as good cover for the implementation of decisions which would serve Zuma in the long run.
It was Motlanthe who signed legislation disbanding the Scorpions unit, which was investigating Zuma, sparing him the blushes of an obvious conflict of interest.
Once in office in May 2009, he stepped up his campaign to subordinate the state’s crime-fighting capacity to his political will.
No president had been dealt as powerful a hand as Zuma. There were vacancies that had to be filled in all the key criminal justice institutions. He could appoint a new police chief; a new national director of prosecutions; a new head of the SA secret service; and the head of the new Hawks unit, which would replace the Scorpions. In addition to this, the positions of CEO at the state-owned enterprises Transnet and SAA were vacant and he would be called on to appoint a new SABC board.
It was a golden opportunity for Zuma to seize control of a range of key institutions by placing political loyalty above competence in these appointments.
One of Zuma’s first acts was to re-organise SA’s intelligence structures into one department, which was to fall under the control of a new intelligence minister, Siyabonga Cwele.
When it came to appointments, Zuma did not disappoint. Bheki Cele, then a loyal supporter from Zuma’s home province of KwaZulu Natal, was made commissioner of police in July 2009, despite widespread misgivings about the appropriateness of his cowboy style for so serious a job.
Another loyal lieutenant, Menzi Simelane, was made the national director of public prosecutions amid an uproar.
While director-general of justice, Simelane had testified at an inquiry into the fitness of Vusi Pikoli to hold office as prosecutions boss. The inquiry’s convenor, Frene Ginwala, had found that “in general his conduct left much to be desired. His testimony was contradictory and without basis in fact or in law.”
Zuma appointed Mo Shaik — brother of his financial adviser, Schabir Shaik, who had been convicted of corruption — as head of the secret service.
Zuma appointed Anwar Dramat head of the new Hawks priority crimes unit. As insurance against any remaining instinct for independence, the unit was placed under the direct control of the police.
Unsurprisingly, the police, the Hawks and the directorate of public prosecutions showed no interest in pursuing the charges against Zuma — or any other high-profile ANC leader, for that matter. The sting had been taken out of the criminal justice system.
But, in his haste to subdue this potential threat, Zuma had been careless.
The warnings about Cele’s “cowboy” style were proven true as he called on the police to take an aggressive “shoot-to-kill” approach to criminals. He awarded himself the rank of general and re-militarised the police ranks, which had been de-militarised under Nelson Mandela.
Then, the Sunday Times revealed he had pushed through irregular lease deals for police premises in Pretoria and Durban. After a few months of prevarication, Zuma was left with no choice but to announce in June 2012: “I have decided to release Gen Cele from his duties.”
A few months later, in October 2012, the constitutional court found Zuma’s appointment of Simelane was invalid. Judge Zak Yacoob read the ruling: “We conclude that the evidence was contradictory ... It raises serious questions about Mr Simelane’s conscientiousness, integrity, and credibility.”
When Shaik and Dramat’s loyalty came into question, they too were dropped. In Dramat’s case, the Hawks began to investigate him over the rendition of Zimababwean suspects who had been handed over only to be killed.
Zuma did not react to criticism of his poor appointment record. Instead, he replaced those who were made to resign or who were forced out with people he believed would be more loyal to him.
Another Zuma appointment, Mxolisi Nxasana, would be forced to step down as prosecutions director in 2014 after it emerged he had previous brushes with the law.
Zuma knew his shadow security state would inevitably find itself in conflict with the constitutional dispensation. In anticipation of this, he moved to shore up his primary defensive weapon — parliament. He installed a loyal lieutenant, Baleka Mbete, as Speaker and packed the benches with MPs who would stay true to his cause. When they dissented, as veteran MP Ben Turok would over media legislation (more on this below), Zuma forced him out.
Zuma attempted to muzzle the press in 2010 — barely a week after thousands of international journalists had left the country after covering the 2010 soccer World Cup — by announcing draconian “protection of information” legislation which would make it illegal for journalists to be in possession of leaked documents which “threatened state security” with a possible jail sentence of 15 years. Government officials would be able to designate material “classified” if they believed its exposure would compromise broadly defined “national security”.
At the same time the ANC released a “discussion paper” on a proposed “media appeals tribunal” that would oversee complaints about press reporting.
The moves against the media followed sustained reporting on abuses of state money spent on construction of Zuma’s Nkandla residence.
Shortly before taking office, Zuma had stated that the status of judges of the constitutional court needed to be reviewed because they “were not God”.
Zuma sought to bend the constitutional court to his will, overlooking the court’s Dikgang Moseneke as chief justice in favour of Sandile Ngcobo when he was called on to make this appointment in 2009. Moseneke had made veiled criticisms of Zuma.
Zuma may have believed that Ngcobo would serve him as an ally (not for the first time, a mistaken assumption) because he had written a minority judgment in a case concerning him. In July 2008, the constitutional court had ruled that search and seizure warrants used by the Scorpions against Zuma and the arms company, Thint, were legitimate. Ngcobo had been the only judge to disagree.
When Ngcobo retired in 2011, Zuma again overlooked the politically unacceptable Moseneke, choosing to nominate Mogoeng Mogoeng for the top position. Events of the previous week have once more shown him — and the many who criticised the nomination of Mogoeng — to have been a poor judge of character.
Faced with a constitutional court unwilling to become one of his political tools, Zuma turned on it once more. In a 2012 interview with journalist Moshoeshoe Monare, he questioned the court’s judgments. “We don’t want to review the constitutional court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the constitutional court agrees with.
“There are dissenting judgments which we read. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?”The judges were, he said “influenced by what’s happening and influenced by you guys”. By “you guys”, Zuma meant the media.
The starkest illustration of Zuma’s poor judgment of who would serve his interests was his decision to elevate the soft-spoken Thuli Madonsela to the position of public protector.
Once in office, Madonsela showed her mettle.
In all of these moves aimed at cowing the security machinery, closing down the space for free expression and subordinating institutions to his political will, Zuma has enjoyed the backing of the ANC.
There were grumblings and dissent, but the party remained loyal.
In 2014, Zuma moved to further shore up his political control of the security machinery by appointing Nathi Nhleko as police minister and the unknown David Mahlobo as state security minister.
They have since obliged by taking steps to deal with a range of Zuma problems, sometimes with darkly comic results.
Nhleko and Mahlobo were summoned to the front line of the fight against the public protector when she found that Zuma had to “pay back the money” for a portion of the construction on his Nkandla home.
Mahlobo instigated an investigation into Madonsela’s role as a foreign intelligence operative, while Nhleko produced a report which found Zuma did not owe a cent for the renovations. The report was adopted with gusto by the loyal ANC MPs in parliament.
When Zuma’s business connections in the Gupta family went too far and offered the deputy finance minister, Mcebisi Jonas, the position of finance minister, Zuma was cruelly exposed.
Once again the party came to his defence, refusing to condemn him and instead initiating a lengthy process of disclosure behind closed doors at the party’s Luthuli House headquarters. It was a move designed to smother the controversy.
But, because of his failure to bend institutions outside of the security realm to his will, it was inevitable that Zuma’s shadow security state would eventually come into conflict with the constitutional democracy in which it lived an uncomfortable life.
Matters were brought starkly to a head last week when the constitutional court, in a determined, perhaps even defiant, demonstration of its independence, issued the most comprehensively damning judgment yet meted out to a government official.
Mogoeng drew a sharp line in the sand, informing Zuma that: “He is a constitutional being by design‚ a national pathfinder‚ the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”
And, he said: “The president thus failed to uphold‚ defend and respect the constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers.”
After a meeting of the party’s “top six” leaders (which includes Zuma), he laughed off the judgment, refusing to take responsibility and apologising for any “confusion” that he may have caused. He proffered the bizarre defence that what he had done had been within the law at the time because the constitutional court had not yet ruled on it.
Apparently this legal nonsense was acceptable to the “top six” and ANC secretary-general Gwede Mantashe dutifully took to the podium to offer Zuma the “unanimous” support of the “top six”.
Four days later, the ANC’s extended national working committee — a broader meeting of all the party’s key leadership — lined up behind Zuma, saying there were no grounds for impeachment.
The result is that the country has entered a political crisis. On the one hand stands the constitutional democracy and its independent institutions and, on the other, stands Zuma and the party he has bent to his will. Lurking in the background is the security machinery he has put place. It is going to be a war to the bitter end.
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