Implications of President Mbeki’s urgent appeal to the Constitutional Court

For the ANC, judgment passed by Chris Nicholson was an opportunity to put a matter against Jacob Zuma to rest. It is widely reported that the decision by the NPA to lodge an application to appeal and consequently by Cabinet to seek legal advice on inferences made in the judgment, were the last straw for the ANC; that it was these two critical decisions that led to the ousting of President Mbeki from office. I think this is utter nonsense. I believe the decision to fire President Mbeki had already been taken by the national working committee before the NPA and Cabinet announced their intentions.

Talk 702’s Eyewitness News has reported that President Mbeki, on Monday following his televised farewell speech, lodged papers at the Constitutional Court on an urgent basis asking to be part of an application for leave to appeal Judge Nicholson’s ruling on the lawfulness of corruption charges brought against Jacob Zuma. It is reported that President Mbeki will be making this application both in his personal capacity and as state president.

According to Talk 702, the president feels that Judge Chris Nicholson made certain findings against him without hearing his side of the case and also believes that some of the findings that relate directly to his conduct could not have been reached on the facts that were available to Nicholson.

What the ANC told us, was that its decision was inspired by the need to unite the country and provide stability following protracted battles of Jacob Zuma with the courts; that the decision to fire President Mbeki was in the interest of the country and party unity. By this logic, the decision by President Mbeki to clear his name is intended to further widen the rift within the ANC and plant the seed of instability in the country. This would suggest that the protracted battle between the NPA and Jacob Zuma, if the Constitutional Court dismisses allegations of a political conspiracy as rubbish, would continue well into Zuma’s presidency.

It is not certain when the matter before the Constitutional Court would be heard if leave to appeal is granted, but the possibility of Kgalema Motlanthe now going to be sworn in as president of the country may result in unintended consequences by those loyal supporters of Jacob Zuma who want to see him ascend to power. The choice of Kgalema Motlanthe as president of the Republic post 2009 general elections would be good for the country. He appears to be the sole voice of reason and more conciliatory than the rest of the top six members of the national executive committee of the ANC.

Leave to appeal may not be granted, but if it is granted and the Nicholson judgment is overturned, the ANC strategists may have to go back to the drawing board in another attempt for Jacob Zuma to escape the long-arm of the law. The procedural matter relating to the charges against Zuma is a complicated and certainty of the NPA winning its appeal is not guaranteed, but President Mbeki may have a case on baseless inferences of political conspiracy.

It is important for the ANC to respect the decision of President Mbeki to appeal the judgment and clear his name, as Jacob Zuma had been accorded his full constitutional rights to appeal every action by the NPA. In the same manner that Jacob Zuma should appear before the courts to clear his name, President Mbeki should be allowed to do the same. Both men face serious allegations and if left untested before the courts, their reputations would suffer irreversible damage.

President Mbeki warned against turning “triumphalist because the sun shines”. His detractors in the national executive committee should rather keep the champagne on ice before they begin to gloat. In the words of Archbishop Desmond Tutu, “… our country deserves better …”

Interesting political times ahead of us!