Mbeki recall and Nicholson's judgement are not closure

One of the primary catalysts for ousting President Thabo Mbeki has been cited as the attempt to seek the repeal or reversal of the judgement handed down by Pietermaritzburg High Court Judge Chris Nicholson — the decision to challenge that part of the judgement which indicated that Mbeki had interfered in the prosecution of ANC president Jacob Zuma.

It is common cause that this occasioned major upset among the party faithful and their allies, as it touched on an issue that is highly sensitive to the party. Specifically, in order to “go there”, the Cabinet and the president would need to start dancing around, among others, the question of the arms deal, which — let’s face it — is a non-starter.

Since Polokwane, Mbeki has been living on borrowed time, with only the timing of his departure being a matter for debate. The SACP and ANCYL had been among the most vociferous in calling for an early termination but cooler heads prevailed. The perception was that the ANC and the country would best be served by allowing the president and the present Cabinet to see out their term. This, as we now know, is no longer the case, with the president giving his farewell address on SABC2 on Sunday night.

When the judge handed down his decision, he confirmed that due to a procedural irregularity the charges were invalid. This left the NPA with two avenues open to it: either appeal the decision or cure the defect in its procedures. Nowhere did the judge suggest that it was inappropriate for the charges to have been brought in the first instance. If anything, the NPA was lambasted for tardiness and allowing government interference in the decision to prosecute when a prima facie case existed.

After weighing up its options, the NPA elected to apply for leave to appeal because, as things stand and regardless of what vested interest groups might want, it has no choice but to pursue the matter to its proper conclusion.

As I have repeatedly said in the past, the Zuma issue requires a political solution that would afford proper closure. Attacking the NPA for doing its job is unacceptable.

However, in light of the reasons given by the NEC for recalling Mbeki, one issue does stand out: if the NPA is seeking to appeal against the court decision, which we know Mbeki wouldn’t have dared to go near on this occasion, then that leaves only the decision by the president via the Cabinet as the element that seeks to deny closure. Closure of what? Certainly not the case as things stand now.

There is no closure because the charges are now dormant, not dead; the NPA is seeking leave to appeal as required of it by law in light of the existence of a prima facie case, and even if the leave is not granted and it doesn’t petition, it is obliged to remedy the defect and recharge the ANC president.

Of course we are all aware of the intense political rivalry between Mbeki and Zuma as well as the purported interference with the criminal justice system, first by the government and then in retaliation by those supporting the ANC president. The fact that Nicholson confirmed it is, in my opinion, neither here nor there. Fact is, it’s always been there and everyone accepts it, as was the case with the insistence by certain members of the Zuma faction post-Polokwane that Mbeki should depart.

What made it so compelling now?

In Nicholson’s judgement he confirms that as part of his application the ANC president made no bones about the fact that if he went down, it won’t be a solo flight. The judge concludes that the only inference to be drawn from this is that Zuma has information that may well implicate others.

In signalling, via his Cabinet, his decision to challenge Nicholson’s decision with regard to the issue of interference, Mbeki is also in essence informing those who seek to attack him that he too will not be making a solo flight into oblivion if pushed too far.

If that is so and he did answer the conspiracy element of the judgement, what would that entail? It would mean having to go behind the reasons for dismissing Zuma, including a look at Squires’s judgement and the arms deal.

Accordingly and in light of the NPA decision to proceed and the Nicholson judgement setting out the politics that are ripping the country apart, there is only one area in which closure is needed and it’s not limited to the Zuma charges.

Mbeki has bowed out with considerable dignity in order to afford the party the opportunity of healing the rift and moving forward. This does not mean more of the same that brought us to this point in our history.

The time for a proper solution really has dawned.

Fix it — don’t fudge it.