Why it's impossible not to cross-examine Zuma

Former president Jacob Zuma and his legal team arrives at the Zondo commission of inquiry.
Former president Jacob Zuma and his legal team arrives at the Zondo commission of inquiry.
Felix Dlangamandla

This past week Jacob Zuma has given several reminders about who he really is and what he stands for. One of these is that he loves power but hates the formalities that come with it, writes Mpumelelo Mkhabela.

Jacob Zuma has twice taken a presidential oath of office to be guided by the dictates of his conscience and to respect the Constitution of the republic, among other noble undertakings.

His conscience has, as it is abundantly clear, failed him on a number of occasions. He regarded the Constitution as piece of paper only relevant when his personal rights, not responsibilities to the nation, were concerned.

Since the presidential oath is the highest a South African citizen can take, breaking it means there's nothing else that can stand in the way of a constitutional wrecker. So, when witness Zuma raised his right hand and took an oath to deliver his "evidence" at the state capture commission of inquiry, it would have been naive to expect him to redeem himself of his presidential misdemeanours. 

If the office of the president could be trashed in the way he did, who does Zondo and his commission think they are? We shouldn't have been surprised that Zuma started where it mattered most for him: attack the legitimacy of the very same commission whose rules he had just pledged to folllow. Deputy Chief Justice Raymond Zondo and the rest of the commission are, in the strange mind of Zuma, not aware that they are conducting a process triggered by unnamed foreign intelligence agencies in the 1990s!

Zuma is delivering a sober lesson to all South Africans: never elect into power someone whose main purpose is personal survival at all costs. Someone who thinks of his rights above his responsibilities. 

The national debate about minimum standards to qualify for public office, especially that of the president, is long overdue. We need a guided approach to choosing leaders, one that balances the democratic necessity of majority rule and the meritocratic ethos that will give effect to, rather than frustrate, democratic expression

Many are disappointed that Zuma is refusing to provide evidence at the commission. His strategy – a cocktail of obfuscation, deflection and throat-clearing – have left those who were looking forward to an accountable former president disgruntled.

They argue that Zuma's strategy is carefully designed to avoid answering critical questions about his role in facilitating and benefiting from state capture. In a way, Zuma's supposed non-evidence is actually evidence. It may not be immediately helpful for the commission to fulfil its tasks of getting to the truth of what happened during his ruinous presidency. But it should help us to get wiser to take our democracy forward. Call it learning the hard way. 

In his regularly interrupted three-day appearances at the state capture inquiry, Zuma simply reinforced what we have always known about him. He provided more evidence about his character. We are likely to learn more from him as a genuine anti-thesis of what is presidential. 

His mannerisms, rhetoric and action at the commission are evidence personified of a character not suitable for the task especially in a country with massive colonial and apartheid legacy issues to tackle, and new challenges that have emerged. We need serious and selfless leaders who don't harbour century-old grudges about unproven and improbable conspiracies.

Zuma has given several reminders about who he really is and what he stands for. One of these is that he loves power but he hates the formalities that come with it. South Africa is a modern state with the rule of law one of its key pillars. At the heart of it is equality before the law.

Zuma clearly enjoyed the enormous power the state conferred to him as president but disliked the rules-based structure of that power and the requirement that it be exercised in a legal and rational manner. He broke the structure several times to operate in the informal networks. 

In so doing he brought the formal and the informal into tension. And now that he is asked to account for his informal approach, he wants to hide behind the formalities of his job description, which he found constraining. We need leaders who are comfortable working within the confines of constitutional power structures, not outside.

Zuma stalled testifying on Wednesday, crying foul that the commission is asking him to answer questions that are not in line with his duties as head of state. Well, that's precisely the point of the commission: to probe the abuse and misuse of executive power that resulted in the significant part of the state and its entities to be diverted from constitutional duties to serve the private interests of Zuma and his cronies. 

His instructions – direct, indirect and circumstantial – to ministers, civil servants and executives of state companies to serve Gupta interests were informal because he knew or should have known they were wrong. He did not want them recorded officially.

In the absence of this official recording on his part, he strangely wants to convince the commission and the public to assume that those who listened to the instructions didn't record them in their memories or somewhere. Therefore no such evidence of wrong doing exists and he shouldn't be questioned about it. And to the extent that some victims of state capture did record them and are making revelations, Zuma believes he shouldn't be held accountable for it. 

This is not different to the informal "standard operating procedures" of criminal behaviour: to leave no paper trail. Those who defy this procedure should be responsible for it. Now, one can understand why it's impossible not to cross-examine Zuma.

- Mkhabela is a regular columnist for News24.

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