THE "top six" outcome at the African National Congress’s (ANC’s) elective conference in Mangaung — three retained and three replaced — reflects a "business as usual" attitude on the part of the voting delegates. Overwhelming support for the slate put together by the supporters of the incumbent ANC president, Jacob Zuma, is the order of the day. He is joined by incumbents Gwede Mantashe, the secretary-general, and national chairwoman Baleka Mbete, with the new blood coming from Cyril Ramaphosa as deputy president, Zweli Mkhize as treasurer-general and the only uncontested winner, Jessie Duarte, as deputy secretary-general.
The election of Ramaphosa has been widely welcomed. The rand strengthened on the news. In his role as deputy chairman of the National Planning Commission, Ramaphosa has seen to it that constitutional principles have been utilised by and large to inform the plan that it has formulated and which will hopefully be adopted by the delegates as the policy of the ANC. The fact that Ramaphosa is unapologetically a constitutionalist and a capitalist who is a trained lawyer has understandably given comfort to the markets. Ramaphosa carries the hopes of the nation on his capable shoulders.
The same cannot be said of Zuma. When he won in 2007, delegates were prepared to give him the benefit of the doubt in regard to his probity and suitability. It was an "anyone but Mbeki" atmosphere that he was able to exploit. Unlike others in the upper echelons, he was prepared to stand up to Mbeki’s imperiousness. History will tell whether it was a mistake on the part of the ANC to vote him into power in 2007. A third term of Mbeki as ANC president could possibly have been worse.
The current voting cannot be characterised as a mistake. The delegates should know that a questionable technical excuse of the kind — which is unlikely to withstand judicial scrutiny — was used in 2009 as a pretext for dropping 783 charges of corruption, fraud, racketeering and money laundering against Zuma.
They also ought to remember that when the charges were dropped, the then acting national director of public prosecutions, Mokotedi Mpshe, made it clear that he and the top prosecutors working on the case remained convinced that the charges had merit and that they were able to secure convictions on them.
Worse still, the delegates know, or should know, that the Democratic Alliance (DA) is challenging the decision to drop the charges. If, as seems likely, they win in court in the review now pending, even after all appeals are exhausted, then Zuma should, in the spirit of equality before the law, stand trial on the charges he has so successfully ducked for so long. The trial will be a long and arduous one. It will surely be impossible for Zuma to lead the nation from a high court dock.
Yet, the delegates seem to be oblivious of the consequences of voting again for a person who may not be able to see out his term of office, either in the ANC or in the country. The rule of law applies to everyone with equal force. Zuma is not above the law, and any attempt to change this has its downside — a dip in ratings, a flight of capital and the undermining of the national accord which underpins our constitutional order. In short, the rule of law is put in jeopardy if the DA review is successful and Zuma continues to avoid standing trial on the charges by using whatever new stratagems are devised for him.
Zackie Achmat, who has been an ANC member for 32 years, describes the election of the new top six as "a victory for the corrupt" and is considering terminating his support of the ANC. Adriaan Basson searched the records of the Company and Intellectual Property Commission on 26 September, and established that "Zuma Incorporated", the network of business entities linked directly to Zuma or indirectly through his wives, children and family, numbers more than 80.
The Nkandlagate issue is under investigation by the public protector. The impropriety of spending public money on Zuma’s private home is manifest; the question is whether there is any evidence linking him to the misappropriations.
In these circumstances, Ramaphosa’s role will be huge. It is he who will have to champion the rule of law and the values of the constitution. He may have to step into Zuma’s shoes, either temporarily during the criminal trial, or permanently, if the ANC decides that enough is finally enough with the shenanigans that Zuma has, in the estimation of the prosecution authority, perpetrated for so long.
In the voting patterns of the delegates at Mangaung, a less generous approach towards the probity of their chosen leadership candidate might have resulted in a less fraught outcome, both for the ANC and for the country. Leading from under a cloud has obvious disadvantages, not only for the leader, but also for those being led.
• Hoffman SC is with the Institute for Accountability.