BETWEEN THE DEVIL AND THE DEEP BLUE SEA
The judgment by Judge Chris Nicholson in the Pietermaritzburg high court declaring that the NPA's decision to recharge Jacob Zuma was unlawful and that it failed to consult him before recharging him, and the judge's allusion to political interference, has opened a can of worms, politically and legally.
In the wake of last Friday's judgment, Zuma supporters, believing that President Thabo Mbeki has a hidden hand in charges against their hero, want Mbeki's head. Such a move would throw the country into a deep political crisis.
The Speaker of the National Assembly, Baleka Mbete, could run the country as the current ANC would not trust Deputy President Phumzile Mlambo-Ngcuka with the job. She is Bulelani Ngcuka's wife and an Mbeki ally.
Section 89 (1) of the Constitution provides that if Parliament removed Mbeki by a vote of no-confidence, it should be only on three grounds - a serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of the office. Section 89 (2) says if the president is ousted on either of the first two grounds, he or she "may not receive any benefits of that office and may not serve in any public office".
Is this what the ANC wants? This will be a difficult decision for the ANC because Mbeki has not violated the Constitution or the law and there is no evidence of serious misconduct in his office.
This leaves us with sub-section (1) (c), which is the "inability to perform". This is contentious in that some may say Mbeki's inferred "political interference" in the NPA's work means that he had abused his office. This is what the Zuma camp has been saying for ages and the party would like to focus and act on this.
The ANC has no power to fire Mbeki as president of South Africa, but they would have to canvass Parliament or instruct it to pass a vote of no-confidence against him. In that case, Mbete would have to take over or the ANC might choose from among other ministers.
The worst case scenario would be for the entire government to be disbanded and early elections called.
Gwede Mantashe has ruled out the latter, saying organising an election so quickly was not feasible - rather allow Mbeki to finish his term.
Mbeki's enemies, mainly from the left-leaning ANC Youth League, Cosatu and the SACP, and ANC individuals with an axe to grind, will pull out all the stops to have him out by this weekend. He has to pay for having frustrated them and stifled their political careers by marginalising them.
If the plan succeeds against Mbeki, it would be the second time a sitting president has been removed from office in South Africa. In 1989 apartheid's groot krokodil, PW Botha, was ousted by FW de Klerk and company after he created two centres of power. He retired as National Party leader but remained on as state president. He was forced to resign a few months later and De Klerk took over.
The current debate within the ANC clarifies the degree of influence the left has on the ANC. If the plan succeeds, it would be a victory for the left and prove that the SACP and Cosatu have the upper hand in running the ANC.
Interestingly, the ANC, which has for ages proclaimed to be the party of the left, resisted being dominated by its left partners. This has been the case since the early days of the Communist Party of SA and Oliver Tambo's era in exile. To date, the ANC is still regarded as the leader of the alliance, yet the SACP seems to be in charge.
Socio-political analyst Zweli Ncube says it would be unwise for Mbeki to be forced to step down now. "The best would be to ask Mbeki and Parliament to call for early elections without moving for a no-confidence vote. Internationally, Mbeki still commands respect. The country can't afford more negative publicity ," says Ncube.
Judge Nicholson's judgment reinforces the notion that this is not a legal matter but a political agenda against Zuma.
"The judge confirmed what Zuma and his supporters have been saying - he was not being prosecuted but persecuted by his political opponents. I think the judge has settled this matter in the minds of Zuma's foes and friends alike," says Ncube.
Zuma followers will justify their antagonism towards certain judges while hailing others as heroes, ignoring the fact that in a democracy the wheel of justice swings like a pendulum - you win - you lose. This process has helped to expose the level of leadership poverty that Polokwane ushered in. In terms of their "shallow analysis", Chief Justice Pius Langa and his deputy Dikgang Moseneke and most of their judges are "counter-revolutionaries" because they ruled against Zuma regarding the Scorpions raids on his properties.
Yet those who ruled in Zuma's favour, including Nicholson, Herbert Msimang who dismissed Zuma's first charges, and the Constitutional Court's Sandile Ngcobo, who dissented on the Scorpions raids, are "true revolutionaries".
Yet all these judges displayed complete judicial independence. Our judiciary will never rest until the whole Zuma saga is settled and, until it is, we will endure more noise and regular media statements from his supporters.