By Pinky Khoabane
SA President Jacob Zuma (left) ANC President Cyril Ramaphosa (right) – the headache facing the ANC
THERE has been much speculation about the secret negotiations taking place between South Africa’s President Jacob Zuma and African National Congress (ANC) President Cyril Ramaphosa. This right here is a major headache for the ANC – the term of office of the ANC president ending before that of the president of the Republic and thereby creating two centres of power and conflict between the state president and the party president. This is really messy business; Ramaphosa is the deputy president of the country and answers to Zuma in government but Zuma is his subordinate at ANC headquarters, Luthuli House. But power resides at Luthuli House as we’ve witnessed in recent decisions taken by Ramaphosa such as those taken at power utility Eskom.
The ANC has struggled to manage this transition since former President Thabo Mbeki lost power to the current president. Such was the friction between the two men that Mbeki had to be recalled in 20 September 2008 with about nine months left in his second term. The reason given for the recall at the time, was the implications of Judge Chris Nicholson’s ruling that Mbeki may have been involved in a political conspiracy against Zuma. A unanimous Supreme Court of Appeal judgement dismissed the Nicholson Zuma judgement.
But back to this much talked about issue of negotiations, with some saying the discussions are about immunity for the President. Since the first National Executive Committee (NEC) meeting this year, it’s been reported that Zuma had made several demands if he’s to step down. They allegedly range between demands for security for his family and immunity for himself. Stemming from that has been the debate of whether he could be granted such immunity. Ramaphosa was recently quoted in the media as saying that immunity from prosecution for Zuma was not what they’d been discussing in the transition negotiations. But as we’ve seen in the past week, fake news has been the order of the day as those getting impatient with ANC’s tackling of the matter have gone on propaganda overdrive. The matter persists despite Ramaphosa’s denials.
I’m not au fait with the law but if indeed the negotiations involve immunity, I wondered if Ramaphosa could negotiate a deal outside the courts. The idea of resolving disputes outside courts is often done and the question is whether such a deal stands before the law.
Then there’s the presidential pardon which used to allow the president to make the decision alone and could not be questioned about it. However, a constitutional court judgement in the case between President of the Republic of South Africa and another (department of correctional services) v Hugo http://www.saflii.org/za/cases/ZACC/1997/4.html confirms that any decision by the president to pardon anyone should abide by the Constitution and could be reviewed by a court.
In short, John Phillip Hugo, a prisoner who, on 6 December, 1991, commenced serving an effective sentence of fifteen and a half years challenged a presidential pardon of a certain category of prisoners. The category of direct relevance to Hugo’s case was “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years”.
Some nine years prior to his incarceration, Hugo married and a child was born of that marriage on 11 December 1982. The respondent’s wife died in 1987.
The judgement read: “It is common cause that the respondent would have qualified for remission, but for the fact that he was the father (and not the mother) of his son who was under the age of twelve years at the relevant date.
“The respondent alleged that the Presidential Act was in violation of the provisions of section 8(1) and (2) of the interim Constitution in as much as it unfairly discriminated against him on the ground of sex or gender and indirectly against his son in terms of section 8(2) because his incarcerated parent was not a female.
“The application was upheld, the court finding that the Presidential Act discriminated against the respondent and his son on the ground of gender”.
I refer to the Hugo case because I wondered if other prisoners wouldn’t or couldn’t appeal the presidential pardon if one were given to the current president, apart from which prosecution must be made before a pardon is given. Then of course is the noble idea of equality before the law even though it’s not applied in reality: If Zuma why not me?
Equality Before The Law
Zuma faces several charges of corruption – 18 charges and at times we hear they are 783. But what about all the apartheid operatives like the last apartheid president F W De Klerk who led a system declared a crime against humanity? We know the brutal massacres against Blacks perpetrated by De Klerk’s government.When does he stand trial for his atrocities? And when are the same South Africans calling so vehemently for Zuma’s head going to do the same for De Klerk?
Zuma must face the law like any other citizen and so should De Klerk and all others who have been implicated in wrong-doing.