Frantic Zuma's last bid

2017-11-12 06:04
(Phill Magakoe, AFP)

(Phill Magakoe, AFP)

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The president’s high court effort to try to dictate the terms of the state capture probe reeks of legal desperation.

As President Jacob Zuma meanders towards his political twilight, he has undoubtedly become a desperate old man who serves a clear and present danger to our democracy.

Let me explain.

With the Russian economic hitmen ostensibly in town to collect their pound of flesh, Zuma’s increasing loss of grip on the levers of political power and his descent into a legal quandary have thrust our constitutional democracy into mortal danger.

The true extent of Zuma’s indebtedness to those he is beholden to, and the damage he has caused to this nation’s political economy, will probably never be fully established nor publicly known, at least not in our lifetime.

On the one hand, if his playing musical chairs with appointments at Treasury and the department of energy are anything to go by, Zuma seems to be in deep trouble as he seeks to satiate promises he made to deliver on a nuclear deal.

Through what is evidently a desperate effort at ensuring that the fiscus continues to bleed, because of exorbitant spending on a nuclear energy project that South Africa’s economy does not need and that its taxpayers cannot afford, Zuma has installed his acolytes at both departments in an attempt to keep his part of his corrupt dealings with foreign interests.

On the other hand, he was recently dealt a severe legal blow when the Supreme Court of Appeal eviscerated his hopes of staving off his prosecution on graft charges he has expended his presidency attempting to evade.

In this instance, Zuma astonished all and sundry with his stunning 11th hour concession that the National Prosecuting Authority had acted unlawfully when it discontinued his prosecution on graft charges he faced prior to his ascension to the highest office in the land.

Compounding his legal woes is the Public Protector’s State of Capture report, in which she compelled him to establish a judicial commission of inquiry aimed at uncovering the extent of the rot under his direction and the Gupta family’s role in it.

A central role in state capture

Although Zuma has sought to invalidate said report through the High Court in Pretoria, his submissions to that court and public exhortations in this regard are manifestly fantastical.

Firstly, while he publicly committed to the establishment of the commission of inquiry, his demands that he appoint the commissioner and that the inquiry exclude him are morally and legally perplexing.

The sham of the Seriti commission into the arms deal, for which he appointed the commissioner while implicated in conduct it investigated, is still fresh and reverberates palpably in the public mind.

It is impossible to delink Zuma’s connection with those implicated alongside him from allegations of state capture. Unlike as it transpired with the prosecution and subsequent conviction of his former financial adviser, Schabir Shaik, for corruption, any proper investigation of impropriety on the part of his and his acolytes will necessitate that Zuma come under scrutiny as well.

Zuma is alleged to have played a central role in state capture. He is accused of actively aiding and abetting state capture by abusing his office as president of the republic.

Secondly, he’s call for a commission of inquiry that would incorporate malfeasance committed during the apartheid era, is an attempt to further delay or even completely evade scrutiny and possible prosecution.

Lest we forget, remedial action ordered by former Public Protector Thuli Madonsela is a consequence of specific complaints laid with her office pertaining to Zuma’s and his supporters’ conduct during his term in office.

It is worth noting that Zuma failed to cooperate with Madonsela during her investigation as he avoided responding fully to her questions. How could the public now trust him and accept his sudden epiphany and discovery of conscience when he offers to subject himself to an investigation by the new Public Protector?

Importantly, it was never the complainants’ request that apartheid state capture be investigated. The complaint was against the apparent capture of the new democratic state under Zuma.

Should Zuma feel the need for an investigation of apartheid-era state capture – and God knows if that should also include malfeasance during the colonialists’ era – nothing precludes him from approaching the current Public Protector with a request for such an investigation or him establishing a judicial commission of inquiry, separate to what is now before the high court.

Perhaps it is worth pointing out the irony that, while a key member of the ANC negotiating team at the Congress for a Democratic SA, Zuma and his comrades reportedly agreed to a deal that ensured that corrupt beneficiaries of the apartheid beast’s largesse avoided prosecution under the new, democratic dispensation.

As we now know, the outcome of the investigation of the Bankorp lifeboat during the apartheid regime acutely demonstrates the difficulty to be expected in realising justice and restitution from such complicated, lengthy and costly investigations.

It may be politically expedient and desirable to investigate, for instance, media conglomerate Naspers, mining giants Anglo American and De Beers, IT behemoth Altron, agro-oligarchs Senwes and Afgri, Urban Bantu councillors and many others for unlawfully benefitting financially from the iniquitous apartheid system. However, it is doubtful if our already stretched fiscus can afford to embark on such a costly exercise which may yield Pyrrhic victories.

Time is running out for Zuma

Zuma is a master of kicking for touch. He excels in the maverick art of tendering eleventh-hour public epiphanies when cornered by the courts. His latest spectacle before the courts reeks of legal desperation and an attempt at creating public and judicial pressure valves as he seeks to evade justice. It is evident that our president revels in placing our judiciary in invidious positions.

Zuma is, once again, cajoling the full bench of the high court into making pronouncements which it would probably prefer not to have to make, were it not for his unprecedented excesses.

Our Constitution enjoins the executive branch of the state to comply with the obligations imposed on it. That includes implementing lawful, rational and practical remedial action as demanded by the Public Protector.

Although Zuma was within his legal remit to challenge the Public Protector’s order that he surrender his constitutionally ascribed power to appoint a judicial commission of inquiry to the Chief Justice owing to Zuma’s alleged complicity in state capture, he has failed to offer a plausible and rational solution to the inherent conflict of interest posed in this instance.

It would, therefore, be a reasonable expectation for the court to rule against his assertion of a president’s exclusive constitutional right to appoint judicial commissions of inquiry – for obvious and practical reasons.

Section 84(2)(f) of the Constitution was never codified with an errant, constitutionally delinquent president, such as Zuma has proven himself to be, in mind. He must of necessity and logic be spared the responsibility.

As we await the ruling by the high court, let me restate the obvious. The Russians are in town and someone must pay.

Time is fast running out for a desperate Zuma. He is arguably left with a few legal and political chicanes to negotiate before he faces justice and/or the notorious Russians whose reach and capabilities can unleash a shiver down any hardened mobster’s spine.

Our constitutional democracy continues to endure agonising stress tests under an inherently inept and corrupt Zuma.

The judiciary remains the most effective bulwark against the derailment of our founding fathers’ dream.

The court in Pretoria has a duty not to give Zuma room to either defer or steal our dream.

* Khaas is a businessman and political commentator

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