TRAINSPOTTER: The A-bomb – R2-billion amnesty package for Zuma?

On 8 September, 1974, Gerald Ford, the 38th president of the United States, stood before the American people in order to deliver one of the most controversial addresses in the republic’s history. Over the course of 400 or so tersely spoken words, he granted his predecessor, the vastly unloved Richard Nixon, a full and unconditional presidential pardon for any crimes he may have committed against the country while president. Despite Nixon’s resignation following the Watergate scandal, Ford had decided that the situation was “an American tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”

Proclamation 4311, as it was officially known, was not universally embraced. Ford’s critics insisted that the pardon came as the result of a “corrupt bargain”, and that whatever its intentions, it played like a classic case of ruling class quid pro quo: Nixon resigns, Ford takes his place in the White House, and employs the presidential prerogative to grant a free ride.

“There was no deal, period, under no circumstances,” Ford would later tell a House Judiciary Committee. But it was too late for such declarations: the president’s approval ratings immediately plummeted 20 points, a dive from which he would never recover. In 1976, after just one half of an unhappy, attenuated term, he was narrowly defeated by Jimmy Carter. He dragged with him into the political wilderness a large chunk of the American public’s trust in the system, and there is surely a connection to be drawn between the fact that Nixon was never made to wear pinstriped pyjamas, and the rise of the big orange doofus currently inhabiting 1600 Pennsylvania Avenue.

Amnesty, in other words, comes with vast, often incalculable costs.

Few countries know this better than South Africa. But nonetheless, we blunder on: during a recent ANC confab, during which the most powerful men and women in this country gathered to play chess with 55 million living pawns, Daily Maverick has reliably learned that a rather more pricy version of proclamation 4311 was waved before our own scandal-ridden president.

Indeed, Jacob Zuma’s two terms have generated so much political smut that it’s impossible to know where to start. The rape trial? The 783 corruption charges? The Nkandla matter? The Guptas? Unlike Philippines president Rodrigo Duterte, Zuma doesn’t personally shoot people. But over the past seven years, about 400 political murders have occurred under his watch, casualties in a constant war for slops thrown from the patronage gravy train he has done everything in his power to keep on track. There was the massacre of 34 mineworkers at Marikana in 2012, and the death by negligence of more than one hundred mentally impaired patients in the Gauteng health system during the Life Esidimeni crisis.

But there are other losses that can’t be so easily tallied: the millions of South Africans who have watched their most productive years slip away as the economy oozed towards an entirely self-inflicted recession. Unemployment is expected to reach 28 percent in 2018; youth unemployment is nearly double that; the country remains the most inequitable mid-sized economy in the world as measured by the Gini coefficient.

Interestingly, Jacob Zuma has done just fine by rich Whities—or at least he was doing fine by them, until he started screwing with their finance ministry. But he’s been a consistent disaster for those who are poor, black, and remain on the fringes of a system that no longer requires their massively discounted labour. And nothing Zuma has said or done suggests that he has any interest in arresting this trend—it is clear that his intention is to capture every state-owned entity, create a few more out of entities that are currently not state-owned, and strip their assets until there is nothing left but ceiling tiles and the odd granule of instant coffee. He is obligated to step down as ANC president at the end of the year (he himself announced he wouldn't run for another term), and as president of the country in 2019, timelines that are meaningless when a week represents a political eternity. The factional battle to succeed Zuma is more vicious than anything the ANC has witnessed in its 105 years of existence—which, believe me, is saying something.

And so, it appears that one way out of this governance purdah is to offer Jacob Zuma a retirement package he cannot afford to refuse. In the lead up to last week’s 5th National Policy Conference—itself an early test of the camps battling for succession—the Daily Maverick has learned from two sources that financially remunerative amnesty was put before to the president. Zuma is said to have made a show of dismissing the notion. To be clear, this is not a rumour, but an actual political weapon that a faction of a faction in the ANC are willing to deploy. But when you’ve dropped the A-bomb, it’s difficult to put it back on the plane: at least two billion rand, charges expunged, no jail time, just—poof!—adios muchachos, and thanks for the giggles. 

* * *

It should go without saying that this is a wildly contentious ploy, a tactic so perilous that it’s impossible to game the outcome. And who is so desperately agitating for Zuma to go? The question may sound like the opening line in a stand-up comedy routine, but it forms the core of our politics: the ruling elite and their financial backers are neatly split between a group we’ll call the “constitutionalists”—those who want the South African mainframe to remain essentially unchanged, minus the corruption and the slow pace of policy implementation. (Call them Team Ramaphosa.) Then there is the faction that considers itself to be “radical”—those demanding a drastic rejigging of the economy and a switch-up of its major beneficiaries. (Call them Team Zuma.) The former adheres to the broad church, centrist, non-racial, non-sexist hoohah of the Mandela-era ANC. The latter, ahem, do not.

The amnesty initiative is apparently the work of some within Team Ramaphosa, which itself should not be confused with an ideological or tactical monolith. But, according to a source within the ANC, who spoke to the Daily Maverick on condition of anonymity, the Zuma problem has become so intractable that an act of “historic imagination” is required to solve it:

“We have to ask ourselves: how do you reach a win-win scenario? How do we avoid a scorched earth situation? And how do you not dig yourself into a deeper hole? Lastly,” added the source, “some belligerence may linger—people may not quite have gotten it. So how do you deal with that?”

In other words, even if Zuma’s banking app bleeps with confirmation of his multi-billion rand payout, what happens to his lapdogs? What happens to the dozens and dozens of apparatchiks who are implicated in serious criminal activity, up to and including the murder of fellow cadres? What happens to those who turn a blind eye when he is spirited to Dubai in a Gupta-owned jet? What happens to the many hundreds of millions – billions, actually - already stolen and squandered by his cronies? Many, many people will be required to take the fall in order to purge the country of its current president so that the country can be “fixed”.

Or maybe not.

According to one of the sources within the governing party, the precedent for Zuma’s amnesty package originates with the peace settlement that ended the troubles in Northern Ireland in the late 90s. Reaching an agreement between the two sides was a massively complex undertaking, and the talks, which lasted four years, sketched out something of a roadmap for realizing the impossible. But while Northern Ireland offers a comprehensive mediation framework, history is studded with amnesty agreements, dating back to ancient Greece at least. And there is, of course, an example much closer to home—AKA the negotiated settlement that ended apartheid, to say nothing of the Truth and Reconciliation Commission that underpinned the symbolic formulation of Mandela’s Rainbow Nation.

And we all know how that has worked out.

“Look, my view is different to human rights activists, which is that we live in a shitty world, and that you have to make deals,” Adam Habib, Vice Chancellor or the University of Witwatersrand, told me. “[Apartheid General Magnus] Malan killed 60,000 people, and yet we cut him a deal so that he could go farm quietly, and we could avoid a civil war. Sometimes justice may have to be tempered if peace is to be the dividend. But if you’re not going to get peace, why the hell ditch justice? In South Africa, we cut a deal with apartheid’s murderers in exchange for peace.”

In almost every respect that counts, getting rid of Zuma would require a much simpler gambit. The Constitution—which, incidentally, Cyril Ramaphosa played a great role in framing, so he’d know—holds some important clauses that would effectively roll out the red carpet for a departing former president and his scads of ill-gotten cash.

If there’s a slight and occasional conflation between amnesty and pardon here, that’s because those flouting the plan have chosen their nomenclature carefully. And while the technical aspects are tricky, they’re not that tricky. According to an expert in constitutional law whom I spoke with on condition of anonymity, “there are two ways in which Zuma could avoid prosecution. One is that the National Director of Public Prosecutions could decline to bring charges”—which is a pretty good option, given that the man currently holding that position, Shaun Abrahams, is a master of toenail clipping, and not much else besides. “Sure, this inaction might be challenged, and could be. Second, the president himself has the power to grant indemnity, or rather, a pardon. He can’t pardon himself, of course. But he could step down, and his successor does not have to wait for a conviction to pardon him. There might be challenges to that, but they likely wouldn’t stand, because they’d come up against the very heart of presidential privilege.”

In other words, this is entirely possible?

“It is possible,” continued the expert. “If Zuma says, ‘if I am pardoned, I will leave office. And by the way, I’d also need some money,’ the cash might affect matters.” Zuma is entitled to step down, he’s entitled to accept a pardon, and rich people are entitled to give him shitboats of money, just because. "There could be bribery issues. But even there, you could pardon everyone who might be implicated.”

One hitch is that in order to issue a pardon, there will need to be full disclosure of Zuma’s misdeeds—so what would the Peasant of Nkandla be pardoned for? The original 783 corruption charges that have dogged him throughout his presidency? That would work, if the pardon is combined with the NPA looking the other way for anything else that pops up in, say, the Gupta leaks. In fact, it might not require so strenuous a construction. Embedded in the Nixon pardon is a neat little lawyer trick: you’ll recall that Ford granted his predecessor a pass for “for any crimes he may have committed against the country while president.” That’s a pretty wide sweep.

The Big Chief is home free.

***

Earlier this week, during his address at the South African Communist Party conference, Ramaphosa took the time to heavily promote the judicial commission of inquiry into state capture that Zuma is bound to call, as per the findings and determinations made by the former Public Protector. “The house is burning!” bellowed the deputy president. Ramaphosa is effectively saying, We’re coming after you! He is threatening Zuma in the future with payback for his behaviour in the past and the present, a concept that some people would term “justice." It’s not something that happens around here all that often.

Ramaphosa winning the presidency is a possible outcome Zuma and his backers cannot pretend to ignore, and perhaps the deputy president’s rhetorical thumbscrews are meant to shunt the amnesty offer to the foreground of Zuma’s lizard brain. And there has been the odd golden handshake in the very recent past—the previous National Director of Public Prosecutions, Mxolisi Nxasana, was given R17.3 million to piss off quietly, although there are pending court challenges that will test the legality of this move.

But can amnesty ever really work? As Hannah Arendt noted, what followed the 20th century’s worst regimes was a compound of amnesia and amnesty; the two seem to become interchangeable after a time. That has certainly been the case here in South Africa, where only two men ended up doing jail time for a regime that was dubbed a crime against humanity. Buying Zuma off would add to a set of terrible local precedents, one that is tantamount to rewarding criminality so lavishly so as to make it entirely worth the trouble. Hand the man two billion rand of rich people’s money; pardon his sins; let him enjoy his dotage. That said, it would remove at least some of the danger of a bloody internecine ANC battle, and we could waltz hand in hand into the future, and realize the rainbowist dreams of Mandela without Zuma ruining the party.

Oh, it’s a long shot. But we live in the age of long shots. The A-bomb has been dropped. Now, we await the fallout. DM

Original photo: South African President Jacob Zuma attends the China - South Africa Economy Forum at a hotel in Beijing, China, 05 December 2014. President Zuma is on a four-day state visit to China, focusing primarily on boosting economic ties.  EPA/DIEGO AZUBEL