In the Pretoria High Court 2D, Advocate Kemp J Kemp hunched his shoulders and pushed his head out like a heron about to snaffle its prey.
The 2009 decision to drop more than 700 fraud, corruption, racketeering and money-laundering charges against his client, President Jacob Zuma, was a “message”, Kemp argued, that the National Prosecuting Authority’s “enormous powers” would never again be used to “decide who will be the president of the country” or “to engineer political results”.
“How is that not something that should be upheld, and that should not be lauded?” he asked a full sitting of the High Court bench in the South African capital.
Kemp was in court fighting against the opposition Democratic Alliance (DA), who had filed an application to have the dropping of charges declared “irrational”. The 2009 decision to discontinue Zuma’s prosecution was made by Mokotedi Mpshe – then acting national director of public prosecution.
If the application succeeds, “charges against Zuma may be reinstated”, the DA’s James Selfe told Al Jazeera.
Mpshe had ostensibly dropped the charges after listening to conversations between Leonard McCarthy, then head of the Scorpions special investigative unit, and former prosecutions leader Bulelani Ngcuka, emanating from phone taps by still-unestablished sources.
Ngcuka and McCarthy had apparently discussed whether the timing of the charges against Zuma could be manipulated to favour former President Thabo Mbeki, who was contesting the African National Congress’ (ANC) presidency against Zuma at the ANC’s 2007 Polokwane conference. Zuma ultimately won.
Working in the shadows
The irony of Kemp’s argument was inescapable: The president, who recently weathered a vote of no confidence in the national legislature through the ANC’s substantial majority, has long stood accused of eroding the independence of institutions such as the prosecuting authority and using the state’s intelligence and security apparatus for his own political ends.
The former head of Mbokhodo, the internal intelligence arm of the ANC during the struggle, Zuma is well-attuned to working in the shadows. State intelligence has been used against both mainstream political opponents and grassroots activists, whether in the country’s sprawling shack settlements or in the #FeesMustFall student protests.
Writing in Business Day, political analyst Steven Friedman said that Zuma “was schooled in the security world and … operates politically much as a security operator would, far more concerned with how to stay one step ahead of the ‘enemy’ than with trying to achieve something for the country”.
In reference to a proxy war developing between the president and Finance Minister Pravin Gordhan, Friedman wrote that under Zuma’s watch “the security cluster in general and the spies in particular have much more room to move – and so to meddle in national politics ….”
Six days before Gordhan was to deliver his recent budget speech, he received three pages of questions from the Hawks, an investigative unit that replaced the Scorpions, who were disbanded following pressure from the ANC while it was investigating Zuma before his ascension to the presidency
The questions related to the National Research Unit, an investigative unit situated in the South African Revenue Service, which Gordhan had headed from 1999 to 2009.
In a statement released by Gordhan following his speech – and after the list of questions had been leaked to the media – the finance minister “categorically state[d] that the Hawks have no reason to investigate” him.
“I believe this was meant to intimidate and distract us from the work that we had to do to prepare the 2016 budget,” he said in the statement.
Gordhan continued: “There is a group of people that are not interested in the economic stability of this country and the welfare of its people. It seems they are interested in disrupting institutions and destroying reputations.”
He later fired off another salvo, sending a letter to the Hawks asking them “under whose authority” he was being investigated.
The ministers of police and state security hastily convened a news conference where they maintained that the questions did not mean Gordhan was being investigated.
The president and the finance minister were facing off, but even Zuma hard-men such as ANC secretary-general Gwede Mantashe, and the party itself were coming out publicly in support of Gordhan.
“This is a startling development,” said Richard Pithouse, a political analyst and academic at the Unit for Humanities at Rhodes University. “The liberals within the ANC, the communists, the trade unionists, many people who one would think would support Zuma [are] openly backing Gordhan.”
‘South Africans were as depressed as their currency’
After being elected ANC president, Zuma had once danced unchallenged through South Africa’s political landscape – singing his trademark struggle song, Mshini Wami (“Bring me my machine gun”) to populist frenzy, while promising a more everyman administration than that of his predecessor, Thabo Mbeki.
He had revolutionised how power could be attained and consolidated within the ANC in the build-up to his 2007 election, and had kept a firm grip on the party ever since.
Yet, his control no longer appears absolute. To understand why, analysts suggest, one must rewind to December of last year.
By the time the second Saturday of December 2015 had come around, South Africans were as depressed as their currency.
The rand had nose-dived following Zuma’s sacking of finance minister Nhlanhla Nene, replacing him with an unknown parliamentary backbencher, David Van Rooyen.
An estimated 177 billion rand ($11.6bn) had been lost on the Johannesburg Stock Exchange and ordinary South Africans were contemplating bludgeoned investments and shaky futures – alongside the distressing sense that Zuma had acted with a self-serving impunity.
“That moment of overreach by Zuma changed everything,” says Pithouse. “There was a total backlash against the president from all sectors of society following the collapse of the rand.”
A country resigned to the president’s litany of scandals – including the appointment of alleged lover Dudu Myeni as South African Airways boss and Public Protector Thuli Madonsela’s findings that Zuma and his family had “unduly benefited” from a taxpayer-funded 246-million-rand ($15.7m) upgrade to his private residence at Nkandla in rural KwaZulu-Natal – was now angry and deflated.
The mood darkened when a minister in the presidency, Jeff Radebe, alluded that Nene’s sacking had not been discussed at a cabinet meeting held just before the announcement was made by the presidency on December 9. The ruling ANC also appeared to be caught unaware by Zuma’s decision.
Van Rooyen reportedly pitched up at the treasury with two “advisers” linked to the Gupta family from India, whose businesses – interwoven with that of Zuma’s son, Duduzane – had apparently benefited from their proximity to the president with several government contracts.
“[Firing Nene] was a most unfortunate act on the part of the president,” says George Bizos, a human rights lawyer who was part of the legal team that defended, among others, Nelson Mandela and Govan Mbeki at the 1963 Rivonia Treason Trial. “He obviously didn’t consult his highly placed advisers in government. That the president was almost compelled within a very small period of time to change his decision was encouraging, though.”
Zuma had sacked Nene on a Thursday night, appointed Van Rooyen the next day and, by that Sunday night, announced the reinstatement of Nene’s predecessor, Gordhan – after meeting business leaders and political elders over the weekend.
The markets stabilised slightly, but the damage to South Africa’s economy – and Zuma’s reputation – had been done.
“He seemed to be operating outside his own party and his cabinet in an attempt to give a patsy appointment the keys to the national treasury – with the apparent intention of gaining access to it for his patronage network,” observed Pithouse.
An emboldened Gordhan’s fingers were clenched around the national purse-strings while Zuma’s vice-like grip on the ANC appeared to be loosening.
A change of strategy
The South African Communist Party, normally a compliant member of the alliance which includes the ANC and trade union federation Cosatu, voiced criticism of the Guptas’ influence within the ANC.
Then the president’s legal counsel performed an astonishing turnaround in the Constitutional Court in February. The Democratic Alliance had brought an application that sought to compel Zuma to adhere to the public protector’s recommendations regarding his Nkandla homestead.
Zuma had for almost two years questioned whether he was bound by the recommendations that he pay back a portion of the money spent on Nkandla – for upgrades such as a cattle kraal with culvert and a swimming pool – which were not security related.
A parliament packed with Zuma supporters had backed him with its own report confirming that the president had nothing to pay back, as had the Police Minister Nathi Nhleko.
At the Constitutional Court, Zuma did a last-minute turnaround; his counsel, Jeremy Gauntlett, admitting that the president was indeed bound by the public protector’s report – and that he had, in effect, been acting unconstitutionally.
It was a change of strategy so late in the day that neither the legal counsel for parliament nor Nhleko had time to amend their arguments.
Zuma had seemingly thrown his supporters in cabinet and parliament under the bus. The move further alienated members of the ANC. According to one ANC member, who spoke to Al Jazeera on condition of anonymity for fear of reprisal, the president was now acting “more instinctively, more autonomously, and more erratically”.
It was apparent during questioning by the Constitutional Court judges that Zuma, and parliament, in defying Madonsela’s recommendations, had been acting unconstitutionally – which serves as grounds for impeachment.
The president’s about-turn and dismissal of the public protector’s report does not surprise his ex-comrade and former defence minister in previous ANC governments, Mosiuoa Lekota.
Lekota, who resigned from government and left the ANC after the Zuma-initiated recall of Mbeki in 2008, subsequently formed the opposition Congress of the People. He said: “Zuma and his executive act as if they are above the constitution.”
Recalling a 1996 conversation when Zuma, then ANC national chairperson, had attempted to intervene after Lekota had fired a provincial minister while premier of the Free State province, he said: “Zuma told me at the time that the ANC was more important than the constitution.
“This is not what the struggle against apartheid was about. The drafters of our constitution were sensitive to the Universal Declaration of Human Rights and ensured ours is a constitutional democracy. This means that we have the rule of law which nobody is above, but the Zuma executive behaves opposite to this,” said Lekota.
‘Politics of blood’
The student protests have been met with both police and private security violence.
“This government wants to protect a very narrow, militarised narrative of the struggle, while delegitimising anything outside this mainstream as ‘third-force activity’ intent on staging a coup,” said Leigh-Ann Naidoo, a doctoral candidate and #FeesMustFall student activist at Wits University.
“The government insists that protest be channelled through student representative councils or trade unions, so that they can come down on anything outside mainstream politics with private security and police.”
“Zuma has definitely jacked up the security state. Last year, the [ANC-aligned] South African Students Congress had handed over a list of students involved in the national shutdown of universities, and we soon established that phones of people on that list were bugged,” said Lihle Ngcobozi, a Black Student Movement leader at Rhodes University.
Ngcobozi says she was recently accosted by “two white men in police uniforms” who told her to “stop doing what you and your friends are doing – we know who you are”.
State surveillance is something that Sbu Zikode, the president of Abahlali baseMjondolo (people of the shacks), a social movement fighting for housing rights in South Africa, has become accustomed to. He says there were several attempts by the state to infiltrate and destabilise the movement and that Zuma’s dismissive approach to the law, corruption and transparency has trickled down through the ANC to the politically connected looking to make a quick buck from the most impoverished of shack settlements.
Zikode says that at informal settlements such as Kennedy Road, a sprawling slum next to a rubbish dump in Durban that is home to more than 10,000 people, government tenders for waste removal or the local government’s provision of material to construct new shacks following fires are almost always corrupted.
“The materials to rebuild homes go to card-carrying ANC members to create voting banks and, in some instances, emergency shacks which are rebuilt get sold, rather than going to the families originally living here,” said Zikode.
He also pointed out that “a politics of blood” was emerging in KwaZulu-Natal, where political assassinations were on the increase – especially as people jostled for positions on councillor nomination lists for the local government elections later this year.
Recently, two South African Communist Party members were murdered in Inchanga in KwaZulu-Natal in what is understood to have been a political hit linked to nominations for councillors.
KwaZulu-Natal, a traditional stronghold for Zuma within the ANC, and the party’s largest province in terms of membership, is a “mess and split in half” over its support for the president, says a provincial ANC insider who spoke to Al Jazeera on condition of anonymity because of the volatile situation in the province.
The ANC’s KwaZulu-Natal provincial conference held late last year was marred by allegations of voting irregularities on the part of the pro- Zuma camp, which won the election.
The ANC insider says this is indicative of a “new ANC” defined by voting banks and opportunists looking to access patronage networks, rather than “engage on issues …
“We are seeing the same thing in the ANC’s national executive committee [the party’s highest decision-making body] and in parliament. There are very few people who want to engage and challenge on issues. What we have is a bunch of maskandis [troubadours],” the insider said, using the pejorative to describe ANC members who are vocal when singing their support for Zuma at conferences, but less so when discussing policy.
Pithouse says that along with a dumbing-down of the body politic, Zuma’s emergence has also seen a “dangerous constellation of ideas and practices” that includes a more ethnic politics unseen during the tenures of presidents Mandela and Mbeki, the mobilisation of ANC party structures as informal militia and an emphasis on a “militarised struggle history through use of songs like [his trademark] Mshini Wami that is masculinist and very dangerous in an age of rampant unemployment”.
Zuma retains a strong grip on the ANC’s national executive committee and the national legislature – both loaded with supporters beholden to him. But the messaging from the ANC’s alliance partners, the party’s public backing of Gordhan, and the myriad scandals and court cases that the president has and continues to face suggest that his power is not as absolute as he once believed.
“The backlash against Zuma following the Nene sacking and his about-turn in the Constitutional Court has cohered around Gordhan … It is ‘game on’,” says Pithouse.