SHARED GOVERNMENT; MK IN GOVERNMENT IN KZN AND THE SACRIFICE OF THE RULE OF LAW TO JACOB ZUMA

Negotiations on the formation of a new national government for South Africa following the momentous results of the May 29 elections in which the African National Congress (ANC) could muster only 40.2% of the vote are currently under way. The hope of many is that the ANC will conclude a governing agreement with the Democratic Alliance (DA) and its partners, the Zulu-based Inkatha Freedom party (IFP) and the small Afrikaner centered Freedom Front Plus. And also that the leftist Economic Freedom Fighters (EFF) and its irascible leader Julius Malema, and the recently formed potentially destabilizing uMkhonto weSiswe Party (MKP) of former president Jacob Zuma would be excluded.

Such an agreement promises to be economically favourable and restore a degree of confidence in the country, badly ravaged by the ANC's protracted one-party misrule.

What is imminent is probably not a coalition government, because in a coalition, senior members of more than one party are included as cabinet ministers; rather something like a governing agreement, which provides for a stable minority government. Accordingly, in a nutshell:

- The DA and its partners will not prevent Cyril Ramaphosa from being re-elected as president at the first session of the National Assembly (NA) on Friday, 14 June;

- Ramaphosa would appoint the cabinet exclusively from among the ranks of the ANC;

- The DA and partners will not support motions of no confidence in Ramaphosa or his cabinet and would render their support for adopting the national budget.

In return:

- The DA and its partners will be placed in a stronger legislative oversight position, affording it the chairmanships of some key portfolio committees in the National Assembly (NA);

-  The parties agree to a special modus operandi on dealing with controversial issues such as the BELA (education) Act; the National Heath Insurance (NHI) Act, senior appointments in the public service; Black Economic Empowerment, affirmative action; monetary and fiscal discipline;

-  The parties establish a standing mechanism to negotiate the items just mentioned, as well as all future legislation and try to reach consensus before it goes to cabinet and the NA.

An exclusively ANC cabinet is of course agreeable to the ANC, but ironically also for the DA. This spares the latter from having to bear the brunt of the dysfunction of our broken civil service.

A governing agreement should of course extend beyond the national government to also involve the provinces in which the ANC lost its majority. It is also possible to include municipal authorities where outright majorities are lacking.

The KZN, the MKP, Zuma and the limits of the rule of law

The biggest issue regarding provincial government is KwaZulu-Natal, in which the person of Jacob Zuma, as the force behind and leader of the MKP, is naturally closely interwoven. The discussion now focuses further on this.

The provincial government in KZN

The MKP achieved an enormous electoral victory in KZN by almost winning with an absolute majority. The party won more than 45 percent of the vote and has 37 of the 80 seats in the provincial legislature. The MKP has a potential ally in the IFP with 15 seats. Together they can form a government with the support of 52 out of the eighty members. Reportedly, the MKP has already approached the IFP about this.

For the ANC, the result in KZN was its biggest electoral defeat since 1994. It now has only 14 members in the legislature, thirty less than before.

If the ANC nationally reaches a governing agreement with the DA, the IFP and others, consistent reasoning suggests that they should also do so in KZN, especially to keep out the MKP. They can, because together they have forty of the eighty seats in the legislature (15 from the IVP, 14 from the ANC and 11 from the DA). Such a government can be stabilized through the cooperation of one member of the National Freedom Party, which reportedly is negotiating with the ANC about it.

If they do, the agreement will be different to the national agreement, because here the power relations are completely different. All three will necessarily have members in the cabinet and the premiership will necessarily go to the IFP. This possibility is strong as KZN is economically very important, especially because of its ports.

But is it really safe and prudent?

Consider the following:

- The MKP is already arguing, not without merit, that it would be democratically unfair to keep it out of the KZN government as the party with by far the strongest electoral support.

- The MKP has considerable potential for disruption and could possibly cause mayhem in the province if it is not afforded the position of the (senior) partner in the KZN government. Not without merit, it can be countered that the threat of violence cannot be the arbiter of government formation in a dispensation avowing its democratic credentials. But this theoretically sound argument probably does not match the concrete risk of large-scale violence.

- Also consider that an MKP in a coalition in KZN still does not have a free hand to do as cannot do whatever it wants. In a coalition with the IFP, it must in all probability accept an IFP premier. Regarding the formation of the government, it - the MKP - cannot call all the shots, because it lacks an absolute majority. It will have to make significant concessions or else settle for the opposition benches. The IFP is therefore in a much stronger position in KZN than its only fifteen out of eighty seats suggests.

-  And finally, allowing the MKP to govern together with the IFP in KZN is a small price to pay to prevent the disruption the MKP may cause and to neutralize its turbulent character to a significant extent.

These considerations are not the only ones, but in the potentially explosive battleground of KZN they can only be disregarded at great risk.

The prosecution of Zuma and the limits of the rule of law

The MKP does not say it out loud, but one of the key reasons for forming the party is to dispel the nemesis of criminal prosecution of its leader. If this happens, one of the most important grounds for the very existence of the MKP lapses and Ramaphosa may also be relieved to a significant extent from the worst pressures forthcoming from the Zuma camp.

The ANC and Ramaphosa know this and therefore have good reason to somehow relieve Zuma of the longstanding threat of criminal prosecution.

But there is a more important reason why Zuma's prosecution woes may be close to their end. It is a matter of legal theory, yet at the same time very concrete and simple.

This is that the rule of law holds sway only as long there is a perfect imbalance between the forces that supporting the law and the forces challenge it. The forces that uphold the rule of law must always decisively outweigh the forces against it. The forces maintaining the rule of law (particularly criminal law) are the police, prosecuting authorities, the military (and in general also the civil service.)

The rule of law is therefore profoundly dependent on power - complete preponderance of state power. The law cannot maintain itself. Overwhelming power must.

If ordinary old Jan or old Sipho from Pretoria or wherever kills someone they will run into the overwhelming power of the police and the prosecuting authorities who will apply the rules of criminal law and the law of criminal procedure, for which they are no match. Jan and Sipho are destined for long term imprisonment.

If Jacob, together with a bunch of others, commits corruption so severely that it deserves to be called state capture, he must of course follow the same path as Jan and Sipho. But if Jacob is former president Jacob Zuma and has millions of supporters, who firmly believe in his innocence; and if his supporters also have the proven ability to cause large-scale damage amounting to R50 billion, and a number of deaths within a few days, especially in KZN, as in July 2021, that is a completely different matter.

It is a completely different matter if the state was too weak to prevent or combat the mayhem and is largely unable to prosecute the offenders. And it still remains a completely different matter when Jacob Zuma has just demonstrated again he has more than 2.3 million disaffected supporters, who, moreover, are still concentrated in the very same province.

Although the same law that applies to Jan and Sipho also applies to former president Zuma, in concrete terms this is no longer the case.

While Jan and Sipho are not at all in a position to challenge the state's power, Jacob Zuma is, according to all indications, in the position to do so. The state cannot overcome Jacob Zuma's challenge, or can only overcome it at the risk of large-scale violence and plunder.

In this scenario, unless something very unforeseen occurs, the legal rules have lost the status of enforceable law and are no longer available for the state to overcome Zuma's challenge. In consequence the clash between the state and Zuma assumes the nature of an internal war.

These are the circumstances in which we seem to find ourselves, namely when the forces that must guarantee the overall favorable imbalance in favour of the rule of law give in to the forces that challenge it, namely the forces that Zuma possesses and may unleash.

In those circumstances, individual rules of criminal law and law of criminal procedure - which according to the rule of law should apply - forfeit the binding and enforceable character they should have because they are no longer supported by sufficient state power.

Then alternative means must be considered, to neutralize the forces that challenge the law.

This is when the possibility of pardoning or reprieving of offenders by the President in terms of section 84(2)(j) of the Constitution may come into play. This is not without precedent, specifically not in relation to Zuma because President Ramaphosa already reduced Zuma's sentence of imprisonment in August 2023.

Against this background, pardoning is probably high on the list of Ramaphosa's tasks if he is re-elected as president.

Whether this provision really authorizes the President to exercise this power is a good question: it may only apply to sentences that have already been imposed; not on prosecutions which are still in progress, or may yet to be instituted.

But how, after all, can sound interpretation of a constitutional provision be allowed to stand in the way of being released from the Zuma stranglehold? If the law, as in this case it seems to be, is no longer supported by sufficient power, the rule of law gives way to greater forces, only this kind of political crisis solution remains.

An MK government in coalition with the IVP in KZN and a free Zuma is quite possibly the only peaceful solution to the Zuma/MKP challenge - even if the rule of law is the sacrificial lamb.

Koos Malan is a constitutional jurist from Pretoria.