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A fascinating political battle has been raging in democratic South Africa for more than a decade.
It is a war between two people with contradictory agendas. Jacob Zuma the suspect has been up against Jacob Zuma, president of the Republic of South Africa.
The sites of the battle include the Union Buildings, Nkandla, the entire court system, the public protector’s office, Luthuli House and Saxonwold.
On all these platforms, Zuma the criminal suspect has emerged victorious over Zuma the president.
It’s not clear when the battle between the two began. But part of its evolution can be traced back to Zuma’s corrupt relationship with convicted fraudster Schabir Shaik. This relationship signalled either a transformation of his character or a mere revelation of who he actually was.
Regardless of what is closer to the truth, what is certain is that by the time President Zuma took office in 2009, Zuma the suspect had become firmly entrenched, especially after he managed to convince learned advocates at the National Prosecuting Authority (NPA) to drop criminal charges against him.
Zuma the suspect would use the office of Zuma the president – which has all the power to appoint and dismiss a range of state functionaries including the ministers – to get his way.
Zuma the suspect implemented two simultaneous projects: destabilise the criminal justice system to avoid criminal charges while using the state’s economic institutions to facilitate the commissioning of fresh criminal acts.
Section 9(1) of the Constitution states: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” This is a profound provision that sends clear instructions to the NPA and President Zuma, who appoints the leaders of the institution.
This provision and other obligations to uphold the law give Zuma the president the authority to crack the whip in the criminal justice system to ensure that criminals have no place to hide regardless of their deep pockets or positions in society.
But for Zuma the suspect, the power to appoint leaders of the NPA has a different meaning. It would have been unthinkable to expect Zuma the suspect to waste an opportunity to steer the NPA as an instrument of his defence. Zuma the suspect has emerged victorious since attempts started to have 783 charges against him reinstated. It doesn’t matter that he has lost the legal battles.
For a suspect, victory is when you can stay out of jail. In being able to stay out of jail, Zuma the suspect has defeated Zuma the president who has made it the priority of his government to fight crime and corruption.
The lawyers of Zuma the suspect and the NPA at the Supreme Court of Appeal (SCA) this week tried to argue for leeway for him to avoid prosecution even as they themselves admitted that he deserves his day in court.
Having recently appointed Shaun Abrahams, who is still demonstrably grateful for the elevation, Zuma the suspect believes new representations to Abrahams will help him either avoid prosecution or at least stall it.
Zuma the president should be showing leadership by giving himself up for prosecution if the SCA found, as it is likely to do, that the charges against him must be reinstated. But Zuma the suspect won’t allow it. Zuma the suspect would rather see the NPA in ruins and losing public confidence.
It doesn’t matter that a battered NPA, the only institution through which the state prosecutes suspects, is ruined and therefore Zuma the president is not able to achieve what he has promised the nation in fighting crime. What matters, rather, are the interests of Zuma the suspect.
The courts have tried to rescue the NPA from the clutches of Zuma the suspect. The SCA will more likely try again to give the NPA an opportunity to free itself from the two-faced Zuma.
What Zuma the suspect seeks to achieve through the NPA isn’t different from his conduct towards the public protector. Zuma the president is constitutionally obliged to ensure that the office of the public protector functions effectively and its dignity is respected. But this obligation clashes with the requirements of Zuma the suspect who is inclined to sabotage the functioning of the public protector.
The conflict was exposed during the Nkandla investigation when Public Protector Thuli Madonsela found that Zuma allowed state resources – which he was constitutionally obliged to preserve – to be corruptly used for his personal benefit. When Madonsela pointed this out to Zuma the president, Zuma the suspect came out guns blazing, attacking her at every opportunity.
The conflict would emerge again during the state capture investigation. Zuma the suspect frustrated the investigation into state capture, refused to cooperate with the public protector and spent four hours dodging questions.
Zuma the suspect wanted the investigation to be conducted on his own terms at his own pace. At some point, he stated that the investigation should wait for the new public protector, Busisiwe Mkhwebane. Imagine if all suspects chose their preferred investigators!
The State of Capture report instructed Zuma the president to establish a commission of inquiry. But Madonsela was wise enough to try to disable Zuma the suspect by stipulating that the chief justice must appoint the head of the commission. She also sketched the terms of reference.
But Zuma the suspect doesn’t like anything that deprives him the opportunity to use the full powers available to Zuma the president for his own survival. The courts have once again been asked to intervene.
The allegations of state capture also illustrate the extent of the conflict between Zuma the president and Zuma the suspect.
One example is the role of his son Duduzane Zuma. Duduzane and his friends the Guptas met with Mcebisi Jonas to discuss plans to promote Jonas to the position of finance minister on condition that he would do their bidding. Jonas was promised R600 million in exchange for his envisaged role. He declined and later revealed this in public.
Zuma the president should have heaped praise on Jonas for his exemplary conduct and encouraged him to lay a charge of corruption in terms of the Prevention and Combating of Corrupt Activities Act. But it’s Zuma the suspect, friend of the Guptas, father of Duduzane and more likely a backroom facilitator of the arrangement who sprung up and used the power of Zuma the president to fire Jonas.
This pattern has been the hallmark of Zuma’s presidency. We have hardly had leadership from Zuma the president. He always gets defeated by Zuma the suspect.
By the time Zuma the president leaves office, we will attempt to write about his legacy. It might dawn on us that we actually never had a president.
- Mkhabela is a fellow at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria.
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