One of the few certainties about our politics is that things usually do not turn out nearly as bad, or as good, as we expect. The signs suggest that the political drama that the re-charging of Jacob Zuma will spark in 2008 will broadly follow this pattern. So prepare for neither doomsday nor Utopia as the politics of next year unfold.
The charges against Zuma raise the stakes of 2008’s political battles: they may decide not only prospects for unity in the ANC and our chances of building a stronger democracy, but whether everyone, no matter how powerful, is subject to the law.
There are four possible scenarios, whose impact on democracy would range from very positive to very negative. But the most positive is virtually impossible, the most negative is probably unlikely, leaving us to muddle along in the middle.
First, the highly positive but unlikely scenario: before the ANC chooses its 2009 presidential candidate, Zuma is either acquitted or convicted in a trial generally accepted as fair. If he is freed, he leads the ANC election ticket, if he is convicted, he steps down. The principle that the courts decide on the strength of evidence, not the wishes of politicians, and their right to judge us all, emerges strengthened and confidence that democracy is deepening grows.
That would be nice — and so it is a pity that it is almost certainly not going to happen. Our legal system is painfully slow: some lawyers insist that anyone who believes that the Zuma trial could be settled late next year does not know how our courts work. And, even if the courts were miraculously to settle the issue in 2008, only an acquittal would end the matter — if Zuma is convicted, his lawyers have made it clear that they will launch challenges that will take several years to resolve.
Of course, Zuma may not stand trial: charges against him could be dropped. But it is almost inevitable that this would be seen as a political decision, creating the impression that some high-ups are not subject to the law.
This introduces the worst-case scenario — one in which political influence is clearly used to stop the case against Zuma.
To make this happen, the new majority in the ANC’s national executive committee would probably have to be used in a heavy-handed way to ensure that the Zuma camp controls the government — and can use it to block the prosecution.
The first step may be that suggested the other day by former National Intelligence Agency head Billy Masetlha — the ANC executive would use the electoral system, which allows parties to replace members of Parliament, to recall MPs loyal to Thabo Mbeki and replace them with Zuma loyalists. The new ANC majority could then end Mbeki’s presidency by passing a parliamentary motion of no-confidence in him — or use this threat to get the government to do what they wanted. They would then presumably need to appoint a head of the National Prosecution Authority willing to drop the charges against Zuma.
All of this would strike a deadly blow against the independence of the courts since it would clearly signal that people who win votes for ANC president are not subject to the law.
It would also erode democracy, despite Zuma’s Polokwane victory: the votes of representatives of 60% of the 600 000 active ANC members are not a mandate to dominate a Parliament and a government elected by over 15-million people.
As I have pointed out before, about 10-million ANC voters who endorsed a ticket led by Mbeki in 2004 have not bestowed a mandate on Zuma. Until he wins a national election, he and his supporters cannot claim a mandate from the electorate to govern.
But this course of action, too, is unlikely because the political costs would be very high: it would make ANC unity — or even co-existence — unlikely.
If the Zuma camp had won 80% or more of the vote at Polokwane, they could probably get away with ignoring the losers, who would then be too small a group to cause them much bother. But ignoring the wishes of two out of five active members seems to be asking for trouble. Zuma won because most active ANC members believed that Mbeki’s camp was excluding them. If the Zuma camp makes the same mistake, they may well face the same problem. And so a wholesale purge of Mbeki loyalists prior to 2009 to make way, among other things, for the charges against Zuma to disappear remains possible — but unlikely.
Given this, a third option has been mentioned. It is not as positive as the first, but would be good for the independence of the courts — and, possibly, for democracy. In this scenario, Zuma steps aside to make way for another candidate. In some versions of this possibility, the ANC candidate promises to pardon Zuma if he is convicted.
This would obviously be positive for the integrity of the justice system — even if Zuma was convicted and pardoned — since it would allow justice to take its course. It would also avoid complications that might arise if a sitting president has to spend part of his time in court — let alone the messiness if he is convicted. And, if it was the result of a free decision by Zuma or his supporters, the legal process could not be blamed for frustrating the will of the majority within the ANC.
One problem with this scenario is that the ANC apparently resolved at Polokwane that its president should also be its candidate for state president (it is surely absurd that, because much ANC business is conducted behind closed doors, we need reporters to investigate whether a resolution was passed ). It did not, as some delegates wanted, change its constitution to make this mandatory and so splitting the jobs of ANC and state president would not require a constitutional change. But, if a resolution was taken, this would make this option far more difficult.
It also seems unlikely that Zuma would allow someone else to lead the ANC list until he and his inner circle had taken their time to assess their political options in the light of events in 2008.
All of which leaves the fourth, muddling-through, option. Here, political influence is not used to squash the charges — but Zuma and those around him insist that he is innocent and is therefore a viable candidate for president.
There is much jostling for influence between the ANC and the government and within the ANC. There is also much uncertainty about who will become president in 2009 and under what circumstances. This could end in Zuma withdrawing — but could equally see him becoming ANC candidate for president even as he faces charges.
It would be messy, prompting both hope and dismay. But it would entail neither the disaster nor the happy outcome promised by the other possibilities. And so it would be far more consistent with the way our transition from apartheid to something new has unfolded this past decade and a half