The African National Congress (ANC) is unlikely to pardon President Jacob Zuma from an inquiry into state capture as this would violate the Constitution, says former public protector Thuli Madonsela.
Under pressure to step down before his second term as President of the Republic ends in 2019, Zuma is understood to be negotiating an exit. In a statement released on Wednesday, newly-elected ANC leader Cyril Ramaphosa confirmed that he had begun talks with Zuma over a transition of power.
TimesLive reported that Zuma has agreed to step down as president provided his list of preconditions are finalised. Although the preconditions have not been disclosed, rumours that the president, who stands to face corruption charges related to the arms deal and is implicated in the state capture report, is seeking immunity have swirled.
The ANC in parliament, on Thursday, addressed such rumours but did not outright comment on whether immunity is an option.
MISLEADING MEDIA REPORTS ON TODAY'S CAUCUS MEETING pic.twitter.com/nOvGL5BD7d
— ANC Parliament (@ANCParliament) February 8, 2018
However, Madonsela said that the party is unlikely to absolve Zuma, particularly in relation to the judicial commission of inquiry into state capture, which she, as public protector, called for in her 2016 State of Capture report.
“I don’t think the ANC, which is currently at national level the custodian of the Constitution, would accede to any condition that violates the Constitution and the rule of law. I would want to believe that whatever is being negotiated will respect the Constitution, the rule of law and the independence of the law enforcement agencies.”
The state capture report – penned by Madonsela during her tenure as public protector – contained allegations of an improper relationship between Zuma and the Gupta family, both of whom have denied wrongdoing. At the time of its release, she recommended that Zuma appoint a commission of inquiry to complete the investigation into state capture as she did not have the funds necessary to do so.
Zuma had, for over a year, fought to block the recommendation and set the controversial report aside. His application was eventually dismissed by the High Court in Pretoria in December 2017. A judicial inquiry into state capture, headed by Deputy Chief Justice Raymond Zondo, has since been announced.
Madonsela expressed confidence in Zondo’s ability to steer the commission but said that she would have preferred if its terms of reference were “neater” and more aligned with the report. According to her, those found guilty of corruption and state capture stand to face prison sentences, fines and bans from certain state jobs.
Advice for Ramaphosa
Having negotiated with Zuma before, she said that she hopes the trust Ramaphosa is placing in Zuma will not be betrayed.
“The trust that my team and I placed in President Zuma when he asked for more time was betrayed… I’m hoping, in this case, that President Zuma is operating honestly and is not planning to ambush them,” she said. She explained that a deal struck with Zuma fell through after he sought to interdict the report without informing her of his decision to do so. [see video]
Madonsela described Ramaphosa as no angel as state capture and the events at Marikana, for which she said he was not guilty, took place under his watch. She said he ought to reflect on the ways in which he was party to deviating from the values of the ANC stalwarts and what he should do to build a better nation.
Pedestal of hope
According to her the country has, since Ramaphosa’s election as ANC leader in December 2017, been on a “pedestal of hope”. However, it is also at a crossroads as some people in the party’s new leadership structures have also been implicated in corruption and state capture.
Translating the hope and renewed confidence into positive outcomes for all South Africans would require action on the part of citizens, business and government, she said.
Priorities for SA
Her priorities for turning the country around include suspending people severely implicated in grand corruption so that they cannot manipulate the system to act in their favour. She would also ensure that relevant policies are implemented based on the National Development Plan (NDP), which she would revise to make clearer and include targets and timelines. In addition, Madonsela said she would revise Black Economic Empowerment (BEE), such that opportunities for black businesses are no longer dependent on the limited opportunities provided by big business.
“Part of the reason we ended up with state capture was that there were not enough big businesses to be fragmented to allow others to come in by way of shares. I would say let’s look at the model of Shark Tank and Dragon’s Den, where big business is still driving it because they have resources, skills and experience. But we must go back to our townships and turn them into enterprising communities.”
Madonsela, currently chair in Social Justice in the Law Faculty at Stellenbosch University, said she currently has no plans to enter into formal politics.
She also said it would be inappropriate for her to take on the position of head of the National Prosecuting Authority (NPA), as called for by civil society lobby groups after the High Court in Pretoria declared the post vacant.
“It would be inappropriate to take that position at this stage because the people who would have to be immediately considered for prosecution are people who I already have prima facie evidence of wrongdoing against. It would be unfair that I would now have to decide to use that same pre-decided approach as head of the NPA”.