Cloak and dagger politics: Understanding Mbeki’s removal

• Why the former South African President stepped down although the Constitution was on his side. Plus, the Malema angle in his ouster
• After the African National Congress voted to recall Thabo Mbeki from the presidency, the party’s president, Jacob Zuma, who was facing prosecution over a corruption-riddled arms procurement contract, gave the impression that Mbeki would be allowed to complete the remaining seven months of his presidency. But in less than 72 hours, he had “changed” his mind and Mbeki had to go ngoko (now). What forces were at play? Read more about it in our final serialisation of Frank Chikane’s gripping book, Eight Days in September: The Removal of Thabo Mbeki

The fatally flawed Nicholson judgment that was later dismissed by the judges of the Supreme Court of Appeal (SCA) was the trigger to the removal of Mbeki from office. Clouds had been gathering for some time but by the week of 12 to 19 September 2008, those occasioned by the Nicholson judgment were ominous and began to suggest that Mbeki could be removed from office.

Mbeki returned from Zimbabwe in the early hours of Friday, 12 September, after an extraordinary success. As the facilitator of the Zimbabwe dialogue between the three main political parties in Zimbabwe, he had just got them to initial an agreement, with a formal signing ceremony on Monday, 15 September 2008.

On arrival at home, Mbeki went straight to rest after many days of hard work and sleepless nights in Harare. But instead of waking up later in the day to announce this extraordinary achievement in Zimbabwe, he woke to the Nicholson storm, with news headlines that overshadowed the good news from Zimbabwe. It was as if it was planned to produce such an effect and rob Mbeki and his team of fully enjoying their success.

The facilitation team, consisting of minister Sydney Mufamadi, advocate Mojanku Gumbi, and myself were up and going before him and were alarmed by the judgment as it was presented in court. It felt more like a political statement than a legal judgment.

It just did not make sense in law, especially regarding Judge Nicholson’s comments about the President, his Cabinet, and the Cabinet secretary. Nicholson ruled that the decision to charge Jacob Zuma with corruption and fraud was invalid because the National Directorate of Public Prosecutions (NDPP) had not given him a chance to make representations before deciding to charge him.

This part of the ruling was not alarming as it was the subject of the appeal and was based on procedural legal matters that the National Prosecuting Authority (NPA) had to apply its mind to. What was alarming, though, were the inexplicable, damning comments Nicholson made about Mbeki and others who worked with him, including his Cabinet and myself.

Nicholson ruled that the applicant (Zuma) was correct in averring political meddling in his prosecution. Such allegations had been made during the campaign to support Zuma as he progressed through the corruption and fraud case, including the appeals he had made every step of the way, but there was no evidence to support this. It all remained in the realm of speculation, conjecture, and angry emotions.

Nicholson gave these speculative, conjectural views and angry emotions a veneer of a court ruling. This became the “evidence” which was so desperately needed by some to remove Mbeki as president of the country. The “evidence”, though, would not pass muster in the SCA. The SCA ruled that the remarks made by Nicholson about Mbeki and those who worked with him had no basis and were extraneous to the case before him. The reality is that none of the persons referred to above were given an opportunity to defend themselves.

Those who wanted Mbeki to be removed immediately after the Polokwane conference (where ANC resolved to recall the President) found in Nicholson’s judgment a useful tool to leverage their argument. The judgment was just what they needed and it was harnessed to achieve their objective of removing Mbeki before his term ended.

On retracing my steps to the moment when announcements were made by ANC secretary-general Gwede Mantashe, accompanied by his deputy, Thandi Modise, and the spokesperson, Jessie Duarte, it is clear that the issue was not any of the host of reasons given for the removal of Mbeki from office. The key issue was the case against Zuma. The Nicholson judgment was the best instrument to kill the case once and for all and nothing that threatened this victory could be allowed.

In the words of Mantashe at the press conference following the decision to recall Mbeki: “The biggest worry for us is the question of the reversal of the possible closure of this chapter” (my emphasis). In the ANC’s view, Mantashe said, the case “is not in the public interest. If the case is pursued, it will continue to be a point of division in the ANC. That is the main issue” (my emphasis).

The removal of Mbeki ngoko (now), rather than later, was related to this matter. They could not let him continue as president if he was likely to disturb this project or obstruct attempts to interfere in the judicial processes.

In order to conserve the ammunition given by Nicholson, a project was unleashed to prevent any appeal, causing further divisions within the ANC. Some felt that whatever damage the judgment had caused to the integrity and person of Mbeki and his Cabinet should be left as it was and that they should live with the negative imputations to save the party and its president, Jacob Zuma.

But Mbeki and the others fingered in the Nicholson judgment had been done the worst injustice and believed they had a right to clear their names. A failure to appeal would be construed as an admission of guilt.

These contradictory positions presented the ANC with a dilemma. Officially, the party could not instruct Mbeki or the Cabinet not to appeal as this would be to deny them rights that are enshrined in the constitutions of both the ANC and the country. Some of the party’s leaders felt that he should not pursue the appeal route but could not face him and tell him that. Instead, efforts were made on the sidelines to influence anyone who mattered, unfortunately including me as the Cabinet secretary and director-general in the presidency.

The group constituted to make Zuma’s case “go away” found itself in a difficult situation — any decision taken by the party would have to come down on the side of one of its two leaders, thereby violating the other’s rights. Another factor was that Zuma had had the support of the party at every stage of his case.

After Polokwane, the position was now even clearer: the party was on the side of its president against Mbeki. Nevertheless, it was still difficult for the party to be seen publicly to violate one of its own members’ rights. Under normal circumstances, the NPA could have appealed against the Nicholson judgment on behalf of the State and the case of the Cabinet and the President would have been joined together with it.

But because of the accusation that the President and members of the Cabinet influenced the NPA, they Cabinet and the President decided to appeal on their own. The appeal would be lodged irrespective of whether or not the NPA lodged its own. In fact, they believed that, in order to avoid confusion, their appeal should have nothing to do with that of the NPA — the grounds were, in any case, very different.
As secretary of the Cabinet, I was asked by the lawyers contracted by Mbeki (as president) and by government to sign an affidavit to confirm that the Cabinet had taken a decision to appeal, which I did.