The acceptance of the ConCourt decision was a victory for the opposition, the Economic Freedom Fighters (EFF), who used this decision to justify the obstruction of proceedings in both Houses of Parliament on the grounds that President Jacob Zuma has no legitimacy to hold office and to address Parliament. The impact of this stance is that the President has now asked the Speaker and the National Assembly for protection.
The acceptance of the ConCourt decision and, in particular, the remedial action ordering him to pay back the state money that enriched him in the Nkandla project was also a victory for the EFF.
In these turn of events, the President was unfairly treated and prejudiced because he was the victim of legal uncertainty that was later resolved by the Constitutional Court. The ANC leadership was therefore justified to accept collective responsibility. The prosecution of the Minister of Finance led the ANC into a crisis situation and conflicting organisational positions. This crisis situation was exacerbated by the release of the State Capture Report implicating President Jacob Zuma and three cabinet ministers in corruption and instructing the President to appoint a judicial commission headed by a judge selected by Chief Justice Mogoeng Mogoeng.
The remedial action shows that the former Public Protector, Advocate Thuli Madonsela, does not trust the President and some members of the judiciary appointed by the President upon the recommendation of the Judicial Services Commission chaired by the Chief Justice himself. This trust deficit in the Presidency and the judiciary on the part of the former Public Protector is a serious challenge.
The State Capture Report has created a moral and political dilemma for the ANC leadership. Members of the ANC join the organisation as individuals, not as groups. Each individual is admitted to membership on the grounds that they accept the principles of the ANC.
Personal and Collective Responsibility
In my view the principle of personal responsibility is built into the Constitution of the ANC. However, this personal responsibility is exercised within a collective to ensure organisational coherence. In the course of time, collective responsibility overshadowed personal responsibility.
The issue of personal responsibility reared its head again at the funeral of Comrade Makhenkesi Stofile. It was raised by Deputy President Cyril Ramaphosa. I subsequently wrote an item titled The Capture of the ANC, supporting the principle of personal responsibility. I must give credit to Chief Justice Mogoeng Mogoeng, who taught us in the Judicial Services Commission to leave certain decisions to the conscience of the individual. I personally applied this approach in the work of the Portfolio Committee on Justice and Correctional Services. It worked to the satisfaction of all Committee members as it did in the case of the Judicial Services Commission.
Appealing to the Conscience of a Person
The Secretary-General of the ANC, Comrade Qwede Mantashe, has correctly accepted that the principle of appealing to the conscience of a person concerned is sound and correct. This means, therefore, that in the present circumstances, the ANC cannot, and should not accept collective responsibility for the actions of the President and all those implicated by the State Capture Report. The Secretary-General of the ANC was right to leave the matter to the conscience of the President to heed or not heed the call for his resignation.
However, the situation is so serious that the ANC leadership must choose between the President on one hand, and the ANC and the people of South Africa, on the other hand. To assist the ANC leadership to make its choice, let me explain the nature of the human conscience as a spiritual and political leader.
I embrace all traditions, I am Karaite (i.e. the belief in Spiritual Sun worship). I believe in Karaism (i.e. the indigenous African religion of Light), which says that all human souls emanate from the Spiritual Sun (Kara, that is, the Divine Light), which imparts the Divine Spark (i.e. Inner Light) to all human souls.
At birth, the soul is entombed or imprisoned by the material or physical body made up of water, fire, earth, and air. The Divine Light (or Inner Light) is the divine element in all humanity. It came into the human body through the soul in order to fulfil its divine purpose. The soul is merely the vehicle of, and the means by which, the Divine Spark (Inner Light) can achieve its purpose.
By its nature, the divinity in the individual wants to fulfil its purpose on earth and return to its creator. But the soul prefers to remain on the material plane and meet its material needs. There are therefore conflicting interests between the Divine Spark and the soul in each and every human being. The soul therefore makes all of us inherently corruptible. The greatest challenge facing individual, therefore, is to listen to one’s conscience to ensure that the soul does not overcome the inner light and misdirect the divine element in the individual. To this end, former President Nelson Mandela called for the Reconstruction and development Programme (RDP) of the Soul.
The human conscience is a mechanism built by the Creator to assist each and every individual to distinguish between good and evil, or right and wrong. There are different degrees of consciousness. This is the reason that in law, we talk about “errors of judgement”. The ability to choose the right course of action depends on the level of the individual’s conscience. I cannot question the level of the President’s consciousness.
How I met Cde Jacob Zuma
I met President Jacob Zuma and the late Cde Joe Nhlahla at midnight in a Zambian township in 1986. It is Cde Jacob Zuma who deployed me to the ANC Department of Legal, Constitutional and Legal Affairs. My working relationship with Cde Jacob Zuma and Cde Joe Nhlahla, that I met and worked with Cde Joe Slovo and Cde Chris Hani to develop a strategy to win Nelson Ramodike to the ANC.
It is this relationship that brought me closer to Oliver Reginald Tambo, Thabo Mbeki, Steve Tshwete, Manto Tshabala, Thoko Msana, and others in the post-apartheid South Africa (PASA) Project. I did not relate this history to boast, but to indicate my long comradely association Cde Jacob Zuma, including Cde Zola Skweyiya, Max Sisulu, Pallo Jordan, Pius Lang, and Dullar Omar. I cannot, and will not betray Cde Zuma and/or any of these comrades. But above all, I cannot betray the African National Congress, the inheritance of the people of South Africa as whole.
President Jacob Zuma, like all of us is a fallible human being. He has no inborn entitlement to the Presidency of South Africa. If he has committed errors of judgement, or violated the law and/or the code of ethics, then the law must allowed to take its course. But the ANC as an organisation that carries the hopes and aspirations of the overwhelming majority of South Africans cannot afford to leave the situation of the President to his conscience. This is option that should have been opened to him a long time ago.
My conscience does not allow me to countenance another humiliating treatment of our President. His situation is untenable, and to continue leaving the matter to his conscience is not in the best interest of the ANC, and the people of South Africa.
No-one can claim authority unless it is based on the will of the people. The ANC itself has no power except the power derived from the people who outnumber the ANC membership by millions. The ANC leadership must convene an urgent NEC meeting and ask the President to do honourable thing and assist him in whatever way possible to endure the situation. It would be irresponsible to ask the ANC NEC to resign and dissolve government, and leave the cabinet leadership in a chaotic manner.
The Issue of Succession
I was part of the small NEC task team that managed the recall of Cde Thabo Mbeki. In his case, we decide to put Cde Kgalema Motlanthe as an interim measure. This was dictated by the exceptional circumstances at the time. In the present circumstances, we do not need interim solutions. The ANC culture and packing order dictates that if the President is unable, for whatever reasons, to exercise his powers and perform his duties, his deputy must step in.
The ANC has a highly incredible unifying figure in the person of the Deputy President Cyril Ramaphosa. The founders and ancestors of the ANC will judge the current leadership harshly if it fails to ask President Jacob Zuma and those implicated by the State Capture Report, to do the honourable thing and let the Deputy President Cyril Ramaphosa, to complete the term and reserve the right to rationalize his cabinet to save money for student fees.
In 1997, when circumstances dictated that Cde Tokyo Sexwale step aside, he did so without dissent. Now is the time for the ANC to rebuild the confidence of society in its leadership. There is no other viable alternative. The people of South Africa should not dare destroy the legacy of current future generations of the ANC, and the country. But the current ANC leadership must recognize that the ANC belongs to the people of South Africa as whole. The branches of the ANC, its basic units, are merely vehicles for the will of the people, not ANC members, regardless of their standing in the organisation and/or society, may hold office contrary to the will of the people.
By: Dr Mathole Motshekga, ANC NEC Member
this article first appeared in the sunday independent