The ANC and its crises

Wesley Seale critically assesses Thuli Madonsela's report on state capture

The ANC, its crises and the planned removal of a President.

The surprise and ambush like motion tabled in the National Executive Committee of the ANC, December 2016, by Tourism Minister Derek Hanekom will have ramifications beyond the meeting at St George’s Hotel in Irene, Johannesburg.

The motion took everyone by surprise and even though it never went to a vote, it has now drawn clear divisive lines in the ANC’s top leadership between those perceived to be against President Jacob Zuma and those that are backing him. Basically, we are back to two opposing camps, something the ANC has been trying hard to remedy since the Polokwane conference.

It is the last thing the party wants to be dealing with, especially a year into an elective conference. But if the motion had succeeded, would the removal of President Zuma have been the tonic to resolve all of the party’s woes, especially electoral decline? Let us examine this closely and factually (sadly a big missing ingredient in many of the so called analysis by commentators), with a particular focus on his presidency – the successes and the failures – including the state capture furore that has resulted in a report by former Public Protector Thuli Madonsela, which on the face of it looks rather damning.

When he was fired as Deputy President in 2005 following the trial of his erstwhile “financial advisor” Schabir Shaik, many were quick to assign Zuma to the political graveyard. But he rebranded and regrouped, and with the support of ANC alliance partners – Cosatu and the SACP – and that of the youth league and other structures that felt alienated by former President Thabo Mbeki, Zuma began a spectacular comeback.

This was after his supporters staged a mutiny at the National General Council at the University of Pretoria, preventing any moves to have his ANC membership suspended. Now without the burden of leadership responsibility in government, Zuma was able to canvass support uninhibited. At ANC rallies he belted out Umshini Wami, a song that became his signature campaign tune. He built up considerable support in the provinces.

His victory at Polokwane, although surprising, wasn’t unexpected at all. For Mbeki, the defeat marked his descent into a ceremonial President, before the ANC national executive committee asked him to step down following a ruling by the Durban High Court ruling setting aside corruption charges against Zuma. Now even more emboldened, these events paved the way to the Union Buildings for Zuma – following a minor caretaker role by Kgalema Motlanthe who was then deputy president of the party.

When he ascended to power in 2009 with a 64% majority, Zuma immediately sort to put his stamp on the presidency. Although he brought into Cabinet many who had supported him (a common practice internationally) when he was in the cold, in the spirit of unity he kept a chunk of those that had been appointed by Mbeki, and even some who had openly campaigned against him. This was a positive start to the Presidency by a leader dubbed “Man of the People”.

In government Zuma sort to stamp out his own legacy soon after taking over the reins. The ANC under his leadership identified five key priorities to tackle – education, health, fighting crime and corruption, creation of decent work, rural and agrarian reform. A National Planning Commission was set up and tasked with drawing up the National Development Plan, a 20-year government-planning blueprint. The Plan set ambitious targets including increasing economic growth to 8%, halving unemployment, improving basic education and health, to mention a few. 

An entire ministry dedicated to monitoring, performance and evaluation of government work was set up in the Presidency and Ministers were made to sign performance agreements with the President. There was a greater emphasis placed on the need to increase coordination between the three spheres of government.

An ambitious infrastructure development programme was conceptualised and South Africa became a massive construction site with new roads, bridges, dams, power stations, railway lines being built or refurbished. Through this programme government committed to spending R1 trillion on developing key infrastructure to help speed up economic growth, create large-scale job creation and increase power security. 

Zuma himself oversaw the programme through a specially created Presidential Infrastructure Coordinating Commission (PICC) which comprises of cabinet ministers, directors-general, heads of provincial departments, municipal managers and top SOE executives. The commission is responsible for managing any conflicts that may arise between different spheres of government, which might slow down key infrastructure development projects.

But just as he has put South Africa to work, the President has never been far from controversy. A man who survive multiple scandals including accusation of rape, charges of fraud and corruption, but still made it to the highest office in the land. His biggest test in office came when it emerged that the state had spent R246 million upgrading his rural homestead in Nkandla. Madonsela, who would prove to be a sticking thorn in Zuma’s flesh, conducted a thorough investigation after numerous complaints before producing a hard-hitting report.

Stopping short of accusing Zuma of intentionally violating his oath of office, Madonsela nonetheless concluded in her report – Secure in Comfort – that the Zuma family had unduly benefited from the installation of certain features to the homestead, which she determined were not security related. These included the swimming pool, Amphitheatre, visitors’ centre and a cattle culvert. She ordered that Zuma be made to repay a portion of the amount spent on these luxuries; with the assistance of the Minister of Police and the Minister of Finance to determine how much he was liable for.

Zuma’s initial handling of this scandal brought a lot of consternation not only to himself, but to the ANC which found itself having to defend its President at every turn. This was clearly a mistake. What the party should have done was to advise the President to take Madonsela’s report on review in the High Court to challenge it in its entirety or those aspects of the report he was unhappy about. Instead, the ANC chose to pick a fight with Madonsela. Public sympathy leaned heavily towards the former Public Protector who, it must be added, also used the report as some form of political tool against the movement and its President.

Yes, Secure in Comfort was an uncomfortable report for both the President and the ANC. Zuma and the party found themselves swimming against a tide of open public hostility. The most devastating blow was delivered by the Constitutional Court when it subsequently agreed with Madonsela’s assertion that her remedial action was not just mere recommendations, but had to be acted upon by those concerned.

Madonsela was not done yet. With her term about to end, she decided that she was going to leave office with a bang, and Zuma was again her target. The gripe this time around was the President’s friendship with the Gupta family accused of abusing this friendship to illegally enrich themselves and even offer ministerial positions at their compound in Saxonwold. Madonsela admits in the State of Capture report that she didn’t have much time or adequate resources to undertake such a complex investigation, yet she rushed to release a report. Why?

To answer this question, let us closely examine the allegations put forward and the key findings in the report.

Her investigation, she writes, was sparked by media reports

“The complaints followed media reports alleging that the Deputy Minister of Finance, Hon. Mr. Mcebisi Jonas, was allegedly offered the post of Minister of Finance by the Gupta family long before his then colleague Mr. Nhlanhla Nene was abruptly removed by President Zuma on December 09, 2015. The post was allegedly offered to him by the Gupta family, which alleged has a long-standing friendship with President Zuma’s family and a business partnership with his son Mr. Duduzane Zuma. The offer allegedly took place at the Gupta residence in Saxonwold.”

“The media reports also alleged that Ms. Vytjie Mentor was offered the post of Minister for Public Enterprises in exchange for cancelling the South African Airways (SAA) route to India and that President Zuma was at the Gupta residence when the offer was made and immediately advised about the same by Ms. Mentor.”

The complainants in this regard were Democratic Alliance leader Mmusi Maimane and Father S. Mayebe on behalf of the Dominican Order – a group of Catholic priests.

Media reports have been relied upon in the past to initiate investigations into possible maladministration in state affairs, so this is not an isolated case. In this case, Jonas and Mentor had approached newspapers (the latter first posted on her Facebook page) to tell their story allegedly involving ministerial offers made by the Gupta’s to them in return for certain favours.

Once she had received a complaint, Madonsela was under obligation to investigate, she said. In fact, she states in the report about the obligation that Maimane’s specific complaint placed on her office, leaving it with no choice but to initiate an investigation.

“The investigation was principally undertaken because of the Second Complainant having lodged his complaint under the Executive Members Ethics Act, which does not allow the Public Protector discretionary power to consider whether or not to investigate a matter falling under his/her jurisdiction. Given that the Executive Members’ Ethics Act requires investigations under it to be concluded within 30 days, the investigation was given priority.”

With this obligation placed on her, it was unfathomable that Madonsela would be able to conclude the investigation within 30 days and she admits as much in the report.

The focus of her investigation was President Zuma. The scope included:

- Whether President Zuma improperly and in violation of the Executive Ethics Code, allowed members of the Gupta family and his son, to be involved in the process of removal and appointment of the Minister of Finance in December 2015;

- Whether President Zuma improperly and in violation of the Executive Ethics Code, allowed members of the Gupta family and his son, to engage or be involved in the process of removal and appointing of various members of the Cabinet;

- Whether President Zuma improperly and in violation of the Executive Ethics Code, allowed members of the Gupta family and his son, to be involved in the process of appointing members of Boards of Directors of SOEs;

- Whether President Zuma has enabled or turned a blind eye, in violation of the Executive Ethics Code, to alleged corrupt practices by the Gupta family and his son in relation to allegedly linking appointments to quid pro quo conditions;

- Whether President Zuma and other Cabinet members improperly interfered in the relationship between banks and Gupta owned companies thus giving preferential treatment to such companies on a matter that should have been handled by independent regulatory bodies;

- Whether President Zuma improperly and in violation of the Executive Ethics Code exposed himself to any situation involving the risk of conflict between his official duties and his private interest or used his position or information entrusted to him to enrich himself and or enabled businesses owned by the family.

With such an extended scope and the potential to cause serious reputational damage to those concerned, it was incumbent upon Madonsela to take her time and investigate thoroughly all of these serious allegations. As the head of state, it was imperative that when such allegations were made against Zuma, any investigating authority should thoroughly examine all facts and allegations before them and conduct an extremely thorough probe instead of just relying on guesswork and innuendo.

But because she was in a hurry this time around Madonsela dispensed with her usually thorough professional approach and fairness in the chase for media headlines. She rushed to produce a report that could best be described as half-baked and ill considered. 

Let us examine one of her conclusion in relation to the first accusation as to whether President Zuma allowed members of the Gupta family and his son Duduzane – a business partner to the Guptas – to pick and choose Cabinet members.

“If the Gupta family knew about the intended appointment it would appear that information was shared then in violation of section 2.3(e) of the Executive Ethics Code which prohibits members of the executive from the use of information received in confidence in the course of their duties or otherwise than in connection with the discharge of their duties.”

This is the kind of conclusion that is derived from a rushed investigation by someone seeking to score quick headlines without thinking about the consequences on those that are accused of very serious violations. To insinuate that the Executive Ethics Code could have been violated without a deep probe of that allegation to establish facts, is truly disingenuous.

Sadly, however, the rest of the conclusions follow a similar theme.

Methodology applied in the investigation-involved interviews with Jonas, Mentor, former GCIS head Themba Maseko, and interviews with a number of Ministers including Public Enterprise Minister Lynne Brown and “selected witnesses”.

The former Public Protector is adamant that she served those implicated in the compilation of the report with notices to alert them of the evidence she collected and how it implicated them.

Among these were President Jacob Zuma, Eskom Board Chairman Ben Ngubane, Ajay Gupta, Cooperative Governance and Traditional Affairs Minister Des van Rooyen and Mineral Resources Minister Mosebenzi Zwane. President Zuma was interviewed in his office, the transcripts and tapes of this interview subsequently being released to the media by Madonsela despite the President – who insists that he was not afforded adequate time to respond – expressing his disappointment at this conduct.

Jonas made dramatic allegations to Madonsela. He claimed to have been offered the Minister of Finance position by Ajay Gupta at the family’s Saxonwold home in the presence of the President’s son Duduzane, and businessman Fana Hlongwane. Jonas alleged that he was offered R600 000 in cash on the spot and promised another R600 million should he agree to push Gupta business interests as soon as he is confirmed.

But instead of probing further to determine the veracity of such serious allegations, which involve possible bribery and fraud, all Madonsela could find was a possible infringement of the Prevention and Combating of Corrupt Activities Act.

“In view of the fact that the allegation that was made public included Mr Jonas alleging that the offer for a position of Minister was linked to him being required to extend favours to the Gupta family. Failure to verify such allegation may infringe the provisions of Section 34 of Prevention and Combatting of Corrupt Activities Act, 12 of 2004 which places a duty on persons in positions of authority who knows or ought reasonably to have known or suspected that any other person has committed an offence under.”

She does not, however, clarify who the allegations would have been reported to since Jonas only indicates that he informed Nene of apparent plans to replace him. So who would have failed to verify these allegations thus infringing the law? If this was a court of law, the onus would have been on Jonas – who is the accuser – to prove beyond reasonable doubt and produce concrete evidence that such an offer had been made to him. But then again Madonsela is not a court of law. She has not made any real findings, but has couched her report in a manner that suggests grave wrongdoing without producing a shred of evidence to prove this.

“There seems to be no evidence showing that Mr Jonas’ allegations that he was offered money and a ministerial post in exchange for favours were ever investigated by the Executive. Only the African National Congress and Parliament seemed to have considered this worthy of examination or scrutiny.

If this observation is correct then the provisions of section 2.3 (c) of the Executive Ethics Code may have been infringed as alleged.”

This is an interesting observation given that Jonas never reported this to the President or to Cabinet, but only informed Nhlanhla Nene. How were the President or Cabinet expected to probe something they were not aware about? How is that a violation of the Executive Ethics Code?

Madonsela uses the same principle in relation to her interview with Mentor, who alleges that she was offered the position of Public Enterprises Minister by the Guptas – with President Zuma present – if she agreed to cancel the SAA route to Mumbai, India. Again here, the insinuation is that the Executive Ethics Code could have been violated as a result of failure to verify Mentor’s allegations. It’s still not clear who should have verified the allegations because just as in the Jonas revelation, the onus should have been placed on the accuser to prove these serious allegations.

Since the main focus of this piece is the President, we will not dwell much on Madonsela’s findings in relation to Eskom and its CEO Brian Molefe, the Eskom Board or Ministers Zwane and Van Rooyen. Molefe, who has subsequently resigned out of frustration at Madonsela’s conclusions in relation to his conduct, is also taking the report and review in a bid to clear his harmed reputation.

But it is Madonsela’s final “recommendations” that have left the President with no choice but to also lodge his own review application to set aside this report. Below is Madonsela’s proposed remedial action.

- The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President.

- The judge to be given the power to appoint his/her own staff and to investigate all the issues using the record of this investigation and the report as a starting point.

- The President to ensure that the commission is adequately resourced, in conjunction with the National Treasury.

- The commission of inquiry to be given powers of evidence collection that are no less than that of the Public Protector.

- The commission of inquiry to complete its task and to present the report with findings and recommendations to the President within 180 days. The President shall submit a copy with an indication of his/her intentions regarding the implementation to Parliament within 14 days of releasing the report,

- Parliament to review, within 180 days, the Executive Members’ Ethics Act to provide better guidance regarding integrity, including avoidance and management of conflict of interest. This should clearly define responsibilities of those in authority regarding a proper response to whistleblowing and whistleblowers. Consideration should also be given to a transversal code of conduct for all employees of the State.

- The President to ensure that the Executive Ethics Code is updated in line with the review of the Executive Members’ Ethics Act.

It is unprecedented for a Chapter 9 institution to order a sitting President of the Republic to institute a Judicial Commission of Inquiry and to even appropriate for itself the right to determine how the presiding judge should be selected, or what powers such a commission should have. While the Constitutional Court has rightly indicated that the Public Protector’s remedial action is more than mere recommendations and has to be acted upon, it is clearly inconsistent with the separation of powers for a Chapter 9 institution to force the President to institute a Judicial Commission of Inquiry.

The President has rightly chosen to seek a review order this time around, which is the correct route to take. A report of this magnitude cannot be left unchallenged for fear of the damage it does to his person, the office he occupies and to the broader African National Congress family. As President of the party Zuma has a responsibility to shield it from such harm and to act in a manner that is consistent with the Constitution of the country and that of the party.

Since these allegations came to the fore, there have been numerous calls for the President to step down. Business leaders such as Sipho Pityana, some ANC stalwarts and now members of his Cabinet have expressed the view that the President is too damaged to continue in this position. There has been serious pushback by his supporters in the party, but can aggrieved ANC members truly place all of the blame for the party’s current woes in a single individual? Would the removal of such an individual immediately heal a party that is deeply divided? Would it bring back lost votes?

It is now history that the ANC suffered its heaviest electoral decline this August 2016, since its entering electoral politics. It has lost important metros – with the capital Tshwane and the economic hub Johannesburg being the hardest to accept as now governed by the DA. There have been many schools of thought since the local government elections as to who should shoulder the blame for these losses.

The anti-Zuma school of thought somehow traces the ANC’s electoral decline to that moment under a marquee in Polokwane in 2007 when just over 60% of ANC delegates rejected Mbeki in favour of Zuma. They point out that the rot would have started there, by placing into office a man they deem as deeply compromised and not fit for leadership. 

But shouldn’t Zuma be judged based on the performance of the ANC at the polls since he assumed power and his track record in government, rather than his past misdeeds? When he ran for President in 2009 his fraud and corruption charges had just been withdrawn by the National Prosecutions Authority. He had also not shaken off the rape trial that put him on the spot some three years earlier. Yet that same Zuma was able to command the ANC to a 64% plus victory, just shy of two-thirds majority.

In 2014 when he again ran for office, Madonsela had just released her Secure in Comfort report and this had generated a massive public outcry over wastage of public resources on a single family. This time the opposition were emboldened, they quoted Madonsela’s report at every turn, telling voters what a mistake it would be to return the ANC in office with Zuma as its leader. Rent-a-quote analysts and self proclaimed “independent thinkers” used their influence in the media sphere to write and share their biased opinion demonizing Zuma.

There was a different story to tell at the polls, however. That very same compromised leader had led the ANC to a 62% national victory. The ANC retained all its provinces except the Western Cape. Yes, the counter argument here is that Zuma wasn’t solely responsible for this victory and that it was the greater ANC machinery that went to work on the ground to convince the electorate to renew the ANC’s mandate and allow the party to continue championing the National Democratic Revolution. The people, they said, had shown faith in the ANC and not in Zuma.

Surprisingly, that argument was history when the ANC haemorrhaged votes during the 2016 local government elections in August. Suddenly it was all Zuma’s fault. The President's many scandals, his association with the Guptas, the Nkandla saga etc. had alienated traditional ANC voters who rebelled by punishing the party at the polls.

The finger pointing has continued in the ANC, culminating in the dramatic NEC meeting where the motion for Zuma to step down led to an intensive debate. Indeed, the President must shoulder some of the responsibility for the party’s declining fortunes. His personal conduct in many instances has not been exemplary. His handling of the Nkandla saga compromised and damaged not only himself, but the party in general. His insistence on maintaining close relations with the Gupta family is also not doing Zuma and ANC brands any favours. By putting out one fire after another when it comes to its leader, the ANC has been placed on the back foot, while opposition parties have used this vacuum to grow their electoral share.

However, voters are not punishing the ANC at the polls solely because of President Zuma. Even if he were to step down tomorrow, the declining electoral trend would continue unabated for an extended period. The ANC as a collective need to take responsibility for its failure to deliver on its mandate. Government leaders have become unresponsive to people’s needs in some instances. The ANC has disappeared from its core constituencies and others have occupied this space instead. This must stop.

The party needs to go back to its basics, introspect and come out with painful answers about why it is losing support. People want their government to care, they need a growing economy, they want jobs, decent shelter, healthcare, a functioning education system, and they want to feel safe and to become productive citizens rather than just recipients of social grants.

That better life forall that was promised in successive election campaigns has to be attained by many more for the ANC’s mandate to govern to be renewed every five years. Those who blame Zuma alone for this decline have their heads buried deep in the sand.

Wesley Seale is a lecturer of South African politics at Rhodes University. He writes in his personal capacity.