MONDAY'S APPEALS court decision to allow the reinstatement of graft charges against African National Congress (ANC) leader Jacob Zuma has left the ruling party in unchartered territory as it prepares for this year's general election, writes Bill Corcoranin Johannesburg
Instead of focusing exclusively on trying to secure an absolute parliamentary majority in an election many believe will be the closest in South Africa’s 15 years of democracy, it appears the ANC must also deal with the possibility that its leader – favourite to become the next president – may go on trial for corruption, fraud, tax evasion and racketeering after he takes up office.
Following the ruling by the supreme court of appeal (SCA), which unanimously overturned a high court decision made last September that dismissed 16 charges against Mr Zuma, the ANC reiterated its support for the party’s leader, saying the judgment “will not affect the decision of the ANC that Zuma be the ANC’s presidential candidate for the 2009 elections”.
In light of this unequivocal show of support, it now appears Mr Zuma and the ANC have five possible options: to refer the SCA decision to the constitutional court; to seek a stay of prosecution, where the National Prosecution Authority (NPA) would halt proceedings against the ANC leader after consultation; to face the charges in court; the so-called Chirac solution, where the constitution is amended to prevent the prosecution of a head of state until he or she leaves office; or to strike a deal with the NPA.
According to legal experts, because of the solid reasoning behind the SCA’s ruling, Mr Zuma’s prospects of fighting the NPA’s desire to prosecute him through the courts are fading fast, although appealing Monday’s ruling to the constitutional court is still a likely scenario before other courses of action are taken.
However, what political analysts say is likely to happen is that Mr Zuma’s legal team will either try to strike a plea bargain deal with the NPA, or else the ANC will try to introduce immunity legislation for heads of state.
Yesterday, NPA spokesman Tlali Tlali said they had received correspondence from Mr Zuma’s lawyers following the SCA judgment in which they declared their intention to make representations to the body.
“We have since said we will consider the representations as and when they make it to us,” he said.
If amending the constitution were the preferred course of action for the ANC, political analyst Laurence Caromba of the Centre for International Political Studies told The Irish Times the ruling party would argue there is international precedent for this, since many other countries – including France and Italy – give their heads of state immunity from criminal prosecution.
“It is not clear whether this will pass muster with the constitutional court, however,” Mr Caromba said. “If it does not, the ANC will find itself in an awkward position, since it will be much harder for them to amend the constitution if, as expected, Cope [newly formed opposition party] succeeds in eroding their parliamentary majority.”
Consequently, if the ANC does choose to try and amend the constitution it is likely it will do so before this year’s election, given the uncertainty over retaining its absolute majority.
While a date for the election has yet to be officially announced, time appears to be running out for the ruling party, as the independent electoral commission indicated recently that mid-April would be its preferred time for the general election to take place.
Even if the ANC can formulate the legislation in time, opposition parties indicated they would stringently opposes any attempt by the ruling party to amend the constitution – widely lauded as one of the most progressive in the world – to achieve its own political ends.