Guest Column

Why a deal with Zuma could be worse than we imagine

2018-02-09 17:35
ANC president Cyril Ramaphosa

ANC president Cyril Ramaphosa

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Ivor Sarakinsky and Ebrahim Fakir

The mixed messages over President Jacob Zuma's overdue exit from public office are akin to a psychoanalytic symptom, the manifestation of an amorphous, deep and confused malaise.

Discussion is the medium through which all the different parties – primarily Zuma and Cyril Ramaphosa, with the ANC NEC and NWC as part players in the mental drama – act as each other's therapists in helping to understand their innermost desires while reconciling them with reality.

This is not just about the transfer of power; it is also about mutual transference. Without this, there can be no progress. Unsurprisingly, this semi-public therapy process between Zuma and Ramaphosa remains unpredictable.

Instead of prescribing what each ought to do, as so much of our public commentary does, it is the "is" that is important. That is, how each of the parties perceives each other and their motives. It is this that will determine the outcome.

The risks of a no-confidence motion

The prospects of a no-confidence debate, or even an impeachment process in Parliament, are real constraints on Ramaphosa, since he cannot know whether he enjoys the unqualified support of the full caucus. With a "secret ballot" now established as potential precedent, he cannot even be sure of the support of capricious opposition parties, in whose interest it is that Zuma remains in office.

For Zuma a no-confidence motion is equally risky. So it serves as a stick that narrows the options of the parties for the transition between the 5th and 6th administrations, as Zuma's potential recall is so euphemistically called. Without the parties finding each other, progress in ending "the transition" will be even slower.

It has been argued that Zuma is holding out for some kind of a deal on the infamous 783 counts within 18 charges levelled against him, and potential future charges that may arise out of "state capture" corruption investigations committed by his proxies and associates, amongst whom are the Gupta Brothers Inc.

That Ramaphosa cannot grant Zuma indemnity from prosecution is legally clear. Zuma knows that he cannot legally receive amnesty on prosecution. For him, the game is more complex and "fruitful and constructive" deliberations amongst them continue.

All the while, NPA head Shaun Abrahams has played himself into an unpredictable position – from Zuma's perspective. The decision to prosecute Zuma or not could conceivably be after #Zexit. With a new state president, a pliable NPA head will be as obsequious to the new powers as he was to the previous one.

However, should the prosecution eventuate, the court case on these 783 counts will not be quick. Proving such a case, as the instances of Schabir Shaik and Jackie Selebi show, is a slow and tedious process of presenting micro-detailed evidence with equal and opposite cross examination. Defence council, skilled in the art of vexatious deceleration, could further delay the final outcome.

But even when the day of judgment arrives, there are years of appeals ahead, which means that Zuma could well be in his eighties by the time a jail sentence is confirmed. The courts might be unlikely to send an old man to jail and he will retire to Nkandla, with a possible fine paid for by his friends from their proceeds of crime.

The same logic would apply to any new charges that might be levelled against Zuma arising out of the grand corruption surrounding the Guptas and others. Zuma probably sees the court cases as an inconvenience rather than a final outcome, anyway. 

So, what would be his deepest concern in all of this? Ultimately it is not just about himself. It's about his son and bagman, Duduzane. The attempts to obstruct, delay and bargain are probably linked to a search for a way to insulate his son from the consequences of his actions as a Gupta associate. Zuma will probably throw everyone else involved in this sorry scandal under the bus in order to protect his son. Those others however, need Zuma to remain in office to immunise and shield them.  

So, from Ramaphosa's perspective, he will see Zuma as gaming the legal system, while simultaneously, he has to be seen to be letting the law take its course. Otherwise, he risks eroding his credibility.  

This process cannot be rushed, because Ramaphosa is aware of a range of dynamics that are probably not in the public domain. Indicative of this is the sudden arrival of Black First Land First troops at Luthuli House. This may seem trivial, but a small group, hell bent on instigating public violence, can catalyse dynamics that increase violence exponentially through the country. Ramaphosa has to keep an eye on that in his dealings with Zuma. It is not that he is too cautious or cowardly, Ramaphosa knows more than the armchair advisors.

Peaceful transition key to resuscitating economy 

His approach to dealing with #Zexit peacefully is actually the key to dealing with the other great headache he will have when, not if, he assumes office – resuscitating the economy. Sporadic violence, public protests against his presidency and a persistent campaign to undermine him from within will prevent the creation of the stability that he needs to build upon the goodwill already built, to get the economy going in the right direction. Prudence with a longer-term view, rather than short-term haste to satiate public demands, explains the basis of this approach.

For different reasons, the ANC, for Zuma and Ramaphosa, is incidental. Their respective destinies have been set by the ANC and voters in 2019 will decide on the ANC's destiny. They are both now trying to pursue their deeper agendas within their ambits of power and through action. Hence, the symptoms of uncertainty, anxiety and fear for the future.

We need to be clear that Zuma is not essentially simply seeking "immunity from prosecution". The consequences of the "discussions" between Ramaphosa and Zuma, and what concessions Zuma extracts in exchange for his vacating the office of the President of the Republic, could potentially be worse than we imagine.

Knowing that immunity from prosecution for himself and his proxies is impossible – another way of immunisation from prosecution is necessary, other than prolonged due process. This then leaves open the expectation by Zuma that this can only happen through the continued manipulation of institutions, systems and processes, not via the figment of a formal 'guarantee of immunity from prosecution' or a later presidential pardon (which is premised on an admission of guilt and legal culpability for corruption, which he will be keen to avoid). 

So, Zuma's one bargaining chip will be to try and get Ramaphosa to agree to circuitous and tortuous delays in ensuring that cases against him are not processed and prosecuted – that's likely the guarantee that he seeks which can only happen IF and when there is wholesale manipulation of processes, institutions, systems and appointments in government – especially in the criminal justice cluster. What Zuma might be seeking is basically a continuation of a mode of politics and governance that imitates his disastrous style.

Managing the aftermath

In the short term, for Ramaphosa, this might mean keeping Jacob Zuma in office rather than implicate himself in the ignominy of meddling with processes and hollowing our institutions. But it does mean that by the end of Zuma's term, there may be no institutions of any worth left to preside over and he would literally have to reconstruct democratic governance systems from scratch.

Executive-minded government, based on a crude interpretation of "majoritarian views" is a real train of thought in the ANC. Rule by executive decree and the crude implementation of a majority view – whether moral or immoral, right or wrong – it is argued, is better for socio-economic development. The argument goes that in such systems, once a majority decision is taken, all that matters is efficiency in its execution and implementation. This kind of thinking around government and governance is anathema to a developmental democracy or a democracy that is developmental – and it effectively means subverting our current constitutional system of governance

The issue in the transition between the 5th and 6th administrations, as Ramaphosa calls it, is therefore not that Zuma wants Ramaphosa to give him what he knows is not Ramaphosa's to give. It is that he seeks an entrenchment of government and rule through institutional decay, system manipulation, process subversion and procedural irregularity – which means that the political and governance vices of informality, impunity and unaccountability entrench themselves. This undermines both the rule of law, and the rule by law.

So, whatever the eventual outcome of the "fruitful and constructive" discussions between Zuma and Ramaphosa, the potential resignation of uBaba and the subsequent continuation, entrenchment and consolidation of a form of rule that subverts the Constitution, are what our real fears should be about. This is where our vigilance should be trained on – probably well into Ramaphosa's term.

- Sarakinsky is the academic director of the Wits School of Governance. Fakir is Director of Programs at the Auwal Socio-Economic Research Institute (asri), part time lecturer at the Wits School of Governance and serves on the board of directors of Afesis-Corplan.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    cyril ramaphosa  |  jacob zuma
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