Thabo Mbeki undermined South Africa’s constitution by putting his party first

Former South African president Thabo Mbeki at May Day celebrations in 2003. He failed to challenge a decision by the ANC to recall him in 2008. EPA

In a recent speech, former South African President Thabo Mbeki decried the failure of parliament to act against President Jacob Zuma after the Constitutional Court had declared him in breach of the constitution. This is after Zuma failed to honour the recommendations of the Public Protector’s report on the scandalous expenditure on his homestead in Nkandla.

This is most welcome. But Mbeki’s intervention in favour of constitutional propriety is actually eight years too late.

The consequences of the decisions he took on being ousted by his party, the African National Congress (ANC), as State President in 2008 set a precedent and are still being felt today. By choosing not to fight the ANC over his recall, he missed a major opportunity to assert the primacy of South Africa’s constitution. And the chickens are coming home to roost.

It is worth recalling the events of 12 September 2008. On that day, Judge Chris Nicholson ruled in the High Court that there had been executive interference in the independence of the National Prosecuting Authority (NPA) when it reinstated charges against Jacob Zuma in a case involving alleged corruption 10 years earlier. The NPA’s decision was taken after Zuma ousted Mbeki in a bitter contest for the leadership of the ANC at a party conference in Polokwane almost a year earlier. Nicholson’s ruling echoed the view of Zuma’s supporters that the reinstatement of the charges was politically motivated, and had been done at Mbeki’s behest.

The consequences of Nicholson’s ruling were felt immediately.

With the Zuma faction in firm control of the ANC’s machinery, the ruling party instructed Mbeki to stand down as the country’s president just eight days after Nicholson’s judgement. Like a lamb to the slaughter, he meekly did what he was told. Yes, he went with dignity, for which he needs to be commended. Yet in so doing, as a “loyal and disciplined member of the ANC”, he undermined the legitimacy of the constitution. He placed the authority of the party before that of parliament, which under the country’s constitution, is the only body that can remove a South African president from office.

What the constitution says

In terms of the country’s constitution, the president of the country is elected by the National Assembly from among its members. In practice, this has meant that since 1994 the ANC, as the majority party, has had its leader elected as president following each general election. The exception was when Kgalema Motlanthe succeeded Mbeki for a short period after his resignation in 2008, Zuma having opted to wait to fill the post until after the 2009 election. This procedure is as it should be – the majority party chooses, but has to ratify its decision by referring the appointment to the National Assembly.

When it comes to the removal of a president, the constitution lays down that such an action requires the National Assembly to pass a resolution to that effect by a two thirds majority. It may only do this on one or more of three grounds: a serious violation of the constitution or the law; serious misconduct; and/or inability to perform the functions of office. It also lays down that anyone removed from the office of president on any of these grounds may not receive any benefits of that office (by which is meant, presumably, the denial to that person of his or her presidential pension).

So are we to assume that it was his concern about rands and cents which simply moved Mbeki to resign as president rather than insisting that the party take the matter to parliament? That seems highly unlikely. Love him or loathe him, Mbeki seems never to have been particularly concerned about material issues.

But – as indicated by the detailed account of the matter by Frank Chikane, director-general in the presidency under Mbeki – it seems that the former president chose not to contest the authority of the party because he could not bear to bring upon himself the charge of disloyalty to the party, however harsh he considered its decision. Yet in so doing he did the country a severe disservice.

The alternatives

There were alternatives. He could have insisted that as it was the National Assembly that had appointed him, he should go back to the National Assembly to resign. Or he could have contested the decision by one of two means.

First, Mbeki could have insisted that he would not resign until he had had the opportunity to appeal the Nicholson judgement to the Supreme Court, indicating that were he to have been successful in that, the ANC’s justification for removing him would be overturned.

Ironically, Mbeki lodged an appeal after his resignation, and the Supreme Court did overturn the Nicholson judgement the following January (2009), exposing the Zuma ANC’s cynical ploy for what it was.

Second, more dramatically, he could have involved himself in a bruising battle between his own following and the Zuma faction amongst the ANC’s MPs. Such an action would undoubtedly have been labelled by his opponents as deeply divisive not least as he might have found himself being backed by the opposition Democratic Alliance. This might eventually have led to his expulsion from the party, something which he was clearly keen to avoid.

Pursuit of any one of these paths would have asserted the supremacy of the constitution over that of the party. Naysayers may say that party leaders regularly resign as presidents or prime ministers without such rigmarole when they stand down for party or personal reasons. But South Africa is a newly established democracy and establishing precedents and practices is important.

Zuma himself, and the ANC he has perverted, clearly has little regard for the constitution. Former public protector Thuli Madonsela’s findings about the Nkandla matter, let alone her departing torpedo in the form of the State Capture report, indicate very clearly that he has been guilty, at the very least, of misconduct. Yet Zuma and his acolytes have chosen to ignore this, and are now willing to put their own interests before the long term interests of their own party. As some believe, this may lead on to the ANC’s defeat in the next general election in 2019.

It is this what makes Mbeki’s latest intervention so interesting.

The former president has now brought his critique of his successor as having endangered the future of the ANC, our democracy and economy into the open. He has now clearly aligned himself with the party elders who are dismayed by the ANC’s betrayal of its historically emancipatory role as a liberation movement.

It is good, too, that he has placed the responsibility for censuring Zuma, and perhaps dismissing him, into parliament where it belongs. True, any impeachment proceedings of Zuma by the National Assembly would almost certainly be blocked by the ANC’s pliant majority of MPs. Against that, however, a parliamentary process would open much more political space for the growing minority of dissidents with the higher ranks of the party to state their case. This would help bring the growing political crisis which is gripping the country to the climax it so desperately needs.

Granted, the dominant Zuma faction has no regard for constitutional niceties and would be likely to trample over precedent, even if Mbeki had set one. But this does not negate the fact that the former president missed a major opportunity to assert the primacy of South Africa’s constitution.

Thanks, but no thanks, Mr Mbeki.

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