Two important developments in the last few weeks have been the middle finger Jacob Zuma (and Ace Magashule) proffered to the Zondo commission, the Constitutional Court and the rule of law; and the revelations made by Sydney Mufamadi at the commission. Zuma’s response to the Constitutional Court’s ruling that he is required to obey the summons to appear before the state capture inquiry and answer for his conduct was depressingly predictable. The order was subject to a privilege against self-incrimination, used only by those who fear their criminal wrongdoings will be exposed. He could, in other words, claim no special privilege to refuse to testify at all.
Failing to obey any court order, let alone the orders of the highest court, is a direct challenge to the fundamental order of our society. If people can pick and choose which orders of a court to obey, the rule of law collapses. That a former president who once swore to uphold the constitution could sob brazenly reject a finding of the country’s highest court amounts to nothing less than a constitutional crisis. The court exists to be the arbiter of disputes about what the constitution means; to reject its findings, especially in so nakedly self-interested a way, is to threaten SA’s constitutional order.
Zuma must not be allowed to get away with this; he must be made to back down. Magashule’s intervention compounds the situation. Declaring that the “constitution is not sacrosanct”, he responded to reporters concerning calls to have Zuma disciplined by the ANC and possibly expelled by asking, “Why should we call him into order when he’s done nothing wrong?”
It is hard to imagine him saying anything that could be more compelling evidence of the deep rot inside the ANC and the risk that the looters will once again dominate future leadership. Not that they are lacking in representation in the party’s leadership now.
The reminder that Magashule offered of the essentially lawless conception of power prevalent among too many senior ANC leaders was salutary. It reminds us what is at stake in Ramaphosa’s presidency: whether there is any prospect of keeping the looters from recapturing the state at some point in future.
That such a risk exists is a key reason confidence in the future is so low, why private sector investment has collapsed over the last decade, and why credit risk, reflected in the cost of government borrowing, is so high.
The success or otherwise of Ramaphosa’s presidency turns on whether he can reduce this risk. Getting Zuma to back down or face real consequences is therefore a huge test of his credibility and seriousness, not just as a reformer but as a president committed to uphold the constitution.
The revelations by Mufamadi about the scandalous goings-on at the State Security Agency (SSA) — theft of funds, involvement in factional political battles, funnelling of cash to friendly media, the alleged attempt to bribe judges — are just as troubling.
The revelations were offered with the enormous caveat that the allegations were, in effect, hearsay: some people who gave evidence to the presidential panel Mufamadi chaired said they had knowledge of these events, but no objective evidence was furnished and the panel did not have powers to investigate the claims. We are, therefore, in no position to evaluate their truth or falsity.
The same cannot be said of Ramaphosa. On receiving the Mufamadi report in December 2018 and, presumably having discussed some of it with him, he could immediately have set the wheels of justice in motion to test whether crimes had indeed been committed, and if so to punish those involved.
Had he done so, Mufamadi’s evidence to the commission about two years after his report to the president would have been quite different. If the individuals he named had been investigated and the allegations shown to have been baseless, he would surely have said so. If evidence of criminality had been found, the offenders should have long-since been dismissed and charged.
We do not know if and when the president might have heard about the allegations repeated by Mufamadi concerning David Mahlobo (former SSA minister, now deputy minister of human settlements in the president’s cabinet) and his alleged attempts to bribe judges that do not appear in the public version of Mufamadi’s 2018 report.
Could it be that Ramaphosa, having been informed of the possibility of enormously serious wrongdoing, did not have the allegations investigated and did nothing to satisfy himself that the individuals concerned posed no threat to the functioning of our democracy?
That would be a serious dereliction of duty. It would also be foolish: if the president knew the specifics of the claims made by witnesses interviewed by Mufamadi’s panel, and if he did nothing about them, he is all but inviting the political and constitutional instability his opponents in his own party most desire.
These are not the only concerns about Ramaphosa’s approach to governing and whether it fully reflects the expectations and requirements of the constitution. Consider, in this regard, the constitution’s insistence that members of the executive be held to account for their performance.
There are far too many ministers whose portfolios are in crisis and do not deliver on promises the president has repeatedly made. Their dismal performance reflects on him. Surely a few exemplary firings are long overdue.
Ramaphosa faces an unenviable set of challenges: rapidly rising poverty and unemployment; a fiscal crisis; load-shedding; institutional collapse in numerous state-owned companies; an evolving pandemic that has taxed his government’s limited capacity to the maximum; and a party filled with crooks and thugs. He is unlikely to make progress on most of these any time soon.
But if he fails to protect the constitutional order, his successors will also be unable to fix SA’s many problems. Indeed, if he fails to protect the constitutional order, his successors may turn out to be uninterested in solving social problems and be concerned only with lining their own pockets.
The president needs to recognise and act upon the rot that emanates from his party. More than halfway through his term he can stop delaying, deferring or procrastinating. He can still salvage his administration and his reputation and actually govern.
Bernstein is head of the Centre for Development & Enterprise.
Article published by the Business Day