What Zuma's end game might look like, and how he could play it
noun end·game \ˈen(d)-ˌgām\
“The final stage of a chess game after a major reduction of forces...” - Merriam Webster Dictionary
Strategy. Its an essential component when you play chess. In order to beat your opponent, you have to implement a deliberate plan. Every move must have a purpose. No action is ever desultory and none is ever without consequence. You have to attack your opponent whilst protecting your king at all times and at all cost. Your goal is to breakdown the defence mechanisms that your opponent has set up to protect their king from a checkmate, and absolute defeat. The ability to think two or three moves ahead of your adversary is the key to winning.
President Jacob Zuma, in my view, is different from many of the African National Congress (ANC) leaders who have preceded him. He rose against impossible odds to the highest position in the party, and at the expense of one of the party’s brightest lights, Thabo Mbeki.
Zuma is also an avid chess player. When you analyse his political moves over the last 10 years, Zuma has demonstrated an extraordinary ability to survive because of his ability to out manoeuvre his political opponents, even while being involved in numerous self-inflicted scandals.
To say Zuma has been under the cosh for the past four months would be a gross understatement. It seems the entire citizenry is currently seized with the impact of the momentous constitutional court judgement that found that the country’s number one citizen failed to uphold, defend and protect the constitution, in his handling of the Public Protector, Advocate Thuli Madonsela’s report on the security upgrades at his private Nkandla residence.
A few weeks ago it was alleged that his friends, the wealthy Gupta family, was influencing cabinet appointments. And before then, it was the removal of finance minister Nhlanhla Nene and Zuma’s well publicized shambolic process of replacing him.
Last week the constitutional court, in a judgement delivered by the Chief Justice Mogoeng Mogoeng unanimously confirmed that the Public Protector’s remedial actions have a binding legal effect.
Zuma’s response to last week’s devastating constitution judgement was a public apology for the manner in which the Public Protector’s report was handled by him and his government.
The ANC, through secretary general Gwede Mantashe, then moved swiftly to accept his apology and agitate for the full and speedy implementation of the Public Protector’s remedial actions by all of its implicated cadres.
The National Assembly was also found by the apex court to have failed in its constitutional duty to hold the president to account by resolving that he not was liable to pay for any of the security upgrades at his private Nkandla residence. This resolution was in conflict with the Public Protector’s remedial action, and was found to be unconstitutional. The National Assembly has accepted the judgement.
Zuma has survived about ten years of political pressure. Will he survive yet again?
In my opinion, this could be his endgame.
Below are five factors that might form Zuma’s strategy to defend himself within the ANC so that he survives to lead the country, at least up to the party’s elective congress in 2017.
1. Zuma controls the only mechanism that can hold him to account consequentially: the ANC’s NEC.
Those who know the president well, say he has an encyclopaedic knowledge of the ANC, it’s constitution, it’s history and it’s lengthy and elaborate internal processes. Need I remind you how Zuma comprehensively dealt with a highly influential ANC leader post the ANC ‘s 2008 Polokwane congress: then ANC Youth League president and erstwhile Zuma backer, Julius Malema.
The two men fell out soon after the conference. Zuma, having recognized the threat that Malema posed to his power acted decisively. Over an elaborate and lengthy process Malema was expelled and the ANCYL’s NEC dissolved. This was all done using the ANC’s constitution. Malema fought nail and tooth to keep both his position and his ANC membership. He failed and left to form the EFF.
After the 2012 Mangaung conference, Zuma’s supporters increased their presence in the NEC, ensuring that the Zuma hegemony was strengthened and secure for another 5 year term. This current NEC’s frequent defence of Zuma is well documented.
In the unlikely event that parliament were to succeed in removing him, the internal party process is far more tricky.
For one, what exactly would the NEC charge Zuma with? In the sixteen clauses of misconduct in the ANC’s constitution nothing listed comes close to describing what Zuma has done. The ANC constitution speaks about disciplining members once they have been found guilty in court for corruption; criminal acts; and violating the party’s constitution, amongst others. There is nothing there specifically about violating the country’s constitution.
Even if the NEC succeeded in coming up with a charge, Zuma can easily show that he never acted unilaterally. At all stages of the Nkandla scandal some arm of government was aware, and even as the costs escalated, the department of Public Works knew what was going on and approved it.
2. The NEC knew Zuma’s legal position and endorsed it.
Zuma was not the only NEC member who wrongly believed that the Public Protector’s remedial actions were ‘mere recommendations’ with no legal binding effect. In the unlikely event that the NEC did not endorse the ANC’s parliamentary caucus’ strategy to defend Zuma (a strategy premised on erroneous reading of the law), Zuma can still point to many NEC members who publicly supported this legal position. These include Advocate Mathole Motshekga, the current chair of the parliamentary portfolio committee of Justice and Constitutional Development.
There was also the deputy minister of Justice, John Jeffery who famously quipped, “Who made Thuli god?”. It’s reported that Jeffery made his remarks at a panel discussion hosted by the Law Society in February 2015. Jeffery further stated that,
"Madonsela was essentially an investigator, prosecutor and judge all rolled into one. That is quite unheard of in our law.”
Madonsela also participated at the discussion. She was the only one who adopted the view that her findings were legally binding. The panellists who dissented with her were retired constitutional court judge Zak Yakoob; Wits University deputy head of the law school Prof Mtende Mhango; and the executive secretary of the Council for the Advancement of the SA Constitution Lawson Naidoo.
Jeremy Cronin, the deputy secretary of the South African Communist Party (SACP) and current deputy transport minister also, accused Madonsela of “short circuiting our constitutional dispensation – always in the name of ‘defending’ it” before the SACP had even studied her report . uMkhonto weSizwe Military Veterans Association (MKMVA) chair Kebby Maphatsoe also defended the president.
Zuma can argue that his erroneous legal view was not malicious. He might say that it was neither legally peculiar nor unknown to the NEC. And he can say that if it was approved by the top structures of the party then surely he can’t be expected to take the fall on his own.
3. Zuma partially followed the Public Protector’s remedial action and was stopped by other authorised processes from going further.
Zuma can say that even the judgement acknowledges that he did submit the report within 14 days to the National Assembly with his remarks, as required by the Public Protector.
He can argue that he allowed parliament to conclude it’s own process. And that parliamentary process comprised of two ad-hoc committees, the last of which adopted police minister Nathi Nhleko’s report which cleared Zuma of all personal liability for the Nkandla project. Nhleko’s report was officially adopted by the National Assembly in April last year.
Zuma can say parliament’s own legal team also erroneously read the law and were even prepared to defend their position at the apex court.
Zuma, again quoting Mogoeng, will say that parliament was correct to scrutinise the Public Protector’s report. The outcome of that scrutiny resulted in him being informed by the state body to which he must account, the National Assembly, that he was not liable to pay for any of the upgrades at his home. He could even argue that the fact that this scrutiny was based on bad legal standing was unfortunate.
Zuma has, in his response to the judgement said that,
“The finding by the court that my failure to comply with the remedial action taken against me by the Public Protector is inconsistent with the Constitution and therefore invalid, flows from the fact that I initially followed a different approach. While correct in law at the time, the approach was subsequently demonstrated to be contrary to the Constitution as stated by the Constitutional Court yesterday. I had earlier adopted a different approach based on the judgment of the Western Cape High Court. This ruling was subsequently overturned on appeal, and I immediately set out to abide by the ruling of the Supreme Court on this matter.”
He’s already said that he never intended or knowingly violated the constitution. His actions, he can argue, resulted from a series of unfortunate events based on an erroneous understanding of the law.
4. Zuma can point to actions already taken
Zuma has already listed the actions that he has taken since the Public Protector released her report. He said that he,
“issued a proclamation in December 2013 authorising the Special Investigating Unit to investigate the irregularities in the procurement of goods and services by government officials, their close family members or friends and contractors in Nkandla.”
This is amongst other action taken by government such as the establishment of the office of the Chief Procurement Officer. He can argue that these steps demonstrate a willingness on his, and government’s part to get to the bottom of what went wrong in the project.
5. Zuma has apologised
Zuma can use his apology to the nation to demonstrate his humility and acknowledgement of the mess that Nkandlagate has caused. The ANC has already indicated it’s acceptance of his apology and is characterizing it as a display of Zuma’s leadership ability. Zuma may stress how any action taken against him will destabilise the party a few months ahead of municipal elections.
6. Zuma’s removal from office will damage the ANC irreparably
Zuma and his supporters can argue that even if the NEC can ask him to step down from state office, he will still remain the president of the ANC, at least until the next elective congress whenever that might be.
Imagine that for a moment.
An angry Zuma, now with time on his hands, plotting his revenge from Luthuli House, a base he knows well.
“Who, pray tell, will replace me as state president?
He may ask.
I can hear Zuma chuckle at this point.
Then he will remind them of the Marikana massacre of 2012 and of how the EFF intends to deal with deputy president Cyril Ramaphosa.
He may argue that any action to recall him will have disastrous repercussions for the ANC. His removal may result in the possibility of his replacement (constitutionally it should be Ramaphosa) facing litigation over the deaths of miners at Marikana, while occupying the Presidency.
While at the same time the ANC at Luthuli House will be concerned with his own disciplinary process. This is why Mantashe’s statement that “the ANC will not tear itself apart” is significant.
In my view, these are the three variables that might scupper Zuma’s defence:
1. Public Pressure on the NEC
It’s difficult to gauge how much of the outrage seen on social media and heard on mainly English talk radio stations is reflective of the mood of the grass roots support that Zuma and, by extension the ANC enjoys. But, as political commentator Tinyiko Maluleke says,
“The question that emerges from the ‘endless crises around the president’ is when does a sitting president such as ours, cease to be worthy of the office? The question we pose is, in the first place, a moral rather than legal question.“
It is my belief that sustained public pressure on the NEC will sooner or later force some action. The balance of forces at that point will determine what action the NEC takes. I think the EFF’s strategy of trying to publicly influence the NEC is likely to yield some sort of outcome.
In addition, the pressure from highly respected ANC stalwarts such as Ahmed Kathrada will give Zuma’s NEC foes ammunition to force his hand.
Should the NEC conclude that the public pressure about Nkandla has reached such critical mass that it threatens the ANC at the electoral box, they might want to ditch Zuma.
2. The ANC’s Integrity Committee
At its National General Council (see here) last year the ANC strengthened its Integrity Committee by giving it the power to make binding decisions. ANC veterans Ahmed Kathrada, Andrew Mlangeni, Frene Ginwala and Denis Goldberg are on the committee. The committee has the power to ask any ANC member to step down from public office if they are under investigation for serious transgressions, or have brought the party to disrepute.
There might be a battle to refer Zuma’s conduct in the Nkandla debacle to the committee.
Zuma’s detractors will attempt to hold Zuma directly responsible for the entire debacle arguing that the Public Protector’s report does not absolve Zuma of responsibility. It in fact places more responsibility on him as the number citizen of the country.
The Public Protector states that,
“It is my considered view that the President, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and state resources, but failed to discharge his responsibilities in terms of the latter. I believe the President should have ideally asked questions regarding the scale, cost and affordability of the Nkandla Project."
If Zuma’s supporters lose this battle then the NEC can request the integrity committee to step in. Certain members of the committee such as Kathrada, Mlangeni and Goldberg have already made their views on Nkandla known, so their decision is likely to result in censure for Zuma. Their public utterances could however, be used by Zuma supporters to indicate a lack of impartiality.
3. Another adverse Constitutional Court ruling
The DA has already said that it is seeking advice on the legal prospects of taking all the ANC MP’s to court, who vote against its motion to remove Zuma from office, for violating their constitutional obligation to hold the executive to account. The NEC will have to consider the legal and political implications of another adverse constitutional court ruling if the DA makes good on its promise.
The NEC will most likely seek legal opinion and will make a decision thereafter. It will make sense to remove Zuma before such an adverse ruling, as its implications might be a full blown constitutional crisis. I think the NEC will want to avoid this possibility.
What happens now?
In my opinion, this weeks “extended” National Working Committee (NWC) meeting, which is ostensibly an unofficial NEC meeting, will resolve that a comprehensive report on the matter be presented for discussion at the next NEC meeting scheduled for May. The NWC will also confirm the position of the top six officials of the ANC that Zuma’s apology has been accepted by the party, and that the court order must be implemented fully.
This might mean to publically criticize Zuma’s handling of Nkandlagate will be tantamount to ill discipline, and will be seen as giving ammunition to opposition parties in the lead up to the municipal elections later this year. However, intense lobbying will be happening inside the NEC and the outcome of May’s meeting will reveal the balance of forces.
In the meantime the ANC is embarking on “engagement” sessions to speak to all its stakeholders about its decision. In my view, this move is to define and control a single narrative from all its partners, with an eye firmly on the municipal elections. I suspect the leagues, provincial structures and alliance partners (except the South African Communist Party which has already expressed itself) will soon all align their pronouncements on the judgement with the NWC’s position.
Some analysts have described the DA’s motion to remove Zuma from office after the NWC meeting, as ill timed. Predictions are that it will fail because the ANC will not allow the opposition to dictate to the ANC’s numerically superior parliamentary caucus what political action it must take to deal with its own. In fact Mantashe has already said as much.
The DA or any other party may decide to take ANC MP’s to the constitutional court for failing to hold Zuma to account. Prof Mhango feels that this approach will not succeed as no court ruling can do order Zuma's removal. Only a political decision can do that.
Zuma knows to whom he is politically accountable to. And for now he seems to be in control of his political fate. The chess player in Zuma would have planned for an end-game.
Zuma is said to have overwhelming support within the NEC and has seemingly prepared for the worst possible scenario within the ANC.
More worryingly, Zuma is rumoured to have complete control over the security cluster. If so, is he preparing for the worst possible scenario within the state? Will he want to survive at all cost?
Every chess player knows that the game ends in one of three ways: resignation, stale-mate (draw), or check-mate (absolute victory or defeat).
Whatever happens, Zuma, in my view, will have planned for all possibilities.
Phakamile Hlubi - @phakxx