In June 2005, following the Judge Squires judgement in the Shaik Trial, President Mbeki convened a Joint Sitting of both Houses of Parliament to "release" the then Deputy President of the Republic, Jacob Zuma, from his duties.
President Mbeki, at the time, indicated that the release of the Deputy President was not about the merits or demerits of the contents of the judgement. He said "In this regard, I must emphasise that I studied this judgement not to make any determination whatsoever about its merits or demerits, about whether it was wholly or partially right or wrong. Indeed, such conduct does not fall within our constitutional mandate as the Executive. This task belongs to the higher courts, the organs of state that would hear any appeal that might be lodged.
Accordingly, any actions we may take arising out of Justice Squires’ judgement would arise merely from the fact that a court judgement exists, which our Constitution enjoins us to respect."
He went to explain the difficulty he faced at the time due to non-existence of precedence. He said "We have had no precedent to guide us as we considered our response to the judgement by Justice Squires. We have therefore had to make our own original determination on this matter guided by what we believe is in the best interest of the Honourable Deputy President, the Government, our young democratic system, and our country.
I am fully conscious of the fact that the accused in the Schabir Schaik case have given notice of their intention to lodge an appeal. I am equally aware that a superior court may overturn the judgement handed down by Justice Squires.
However, as President of the Republic I have come to the conclusion that the circumstances dictate that in the interest of the Honourable Deputy President, the Government, our young democratic system, and our country, it would be best to release the Hon Jacob Zuma from his responsibilities as Deputy President of the Republic and Member of the Cabinet"
Difficult to please readers of this text might want to go ahead and re-read the entire speech to understand better what the President said. Here an assumption is made that the reader is aware of what the Squires Judgement entailed. Maybe for a hint of clarity let me quote the President one last time on what he says about the judgement. In his speech he said "Unambiguous as the judgement may be about an assumed unsavoury relationship, the Deputy President has yet to have his day in court."
The sum total of the foregoing is refreshing the collective memory of society of what we have been through in the past and hence the precedent we have set ourselves as a young democracy.
In as much as I am tempted to assume that the Nicholson Judgement is common knowledge, I will resist the temptation and proceed to highlight certain aspects of the judgement.
In Paragraph 156 the Judge quotes Mr Zuma's remark that "Shortly before the 20th (on or about Sunday, 6 June 2005), I was requested by the President of the RSA, through others, to resign in the light of the Shaik judgement. The request at that time was hard to justify on any legal basis." He goes on in paragraph 158 to say "...Even though the President’s decision was unfair and unjust, given the fact that the applicant was not given a chance to defend himself in a court of law, it was not an illegal act given his power to hire and fire his Deputy or cabinet ministers, at his will."
The judgement in paragraph 199 makes reference to the court papers submitted by NPA and remark that "These consultations with the office of the Presidency on the implied ongoing basis from February 2006 are also cause for concern given the constitutional imperative of independence." Nicholson continues in paragraph 210 and says "The timing of the indictment by Mr Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane was most unfortunate. This factor, together with the suspension of Mr Pikoli, who was supposed to be independent and immune from executive interference, persuade me that the most plausible inference is that the baleful political influence was continuing."
I am quoting the judgement extensively deliberately so that even the stubborn can understand the thrust of this argument. It should be clear that this is not the figment of the imagination of the author.
The Judge says, in paragraph 214 "Is it possible that the Mr Maduna was on a frolic of his own or acting on instructions? It seems very improbable that in so important a matter as one involving the Deputy President (his political superior) a mere minister would get involved without the President knowing and agreeing."
President Mbeki indicated clearly that he studied the Squires judgement "...not to make any determination whatsoever about its merits or demerits, about whether it was wholly or partially right or wrong. Indeed, such conduct does not fall within our constitutional mandate as the Executive." This principle should obviously apply to Nicholson's judgement in 2008 as it did in the Squires judgement in 2005.
President Mbeki's last paragraph of his speech says "I trust that what we have done today, and will do in future, together, will continue to strengthen our democracy, reinforce the accountability of those who hold public office, and deepen the confidence of the masses of our people in their elected representatives and our organs of state."
President Zuma highlighted that "Shortly before the 20th (on or about Sunday, 6 June 2005), I was requested by the President of the RSA, through others, to resign in the light of the Shaik judgement." Clearly the President of RSA should now exemplify what he asked of his Deputy President at the time and resign, this time in the light of the Nicholson judgement.
In President Mbeki's speech in 2005, it is apparent that the President could not bring himself into pretending that the judgement exists. To him, this justified why he had to act on his Deputy even though the judgement could still be reversed by a higher court in the appeal. This is evident in the statement "Accordingly, any actions we may take arising out of Justice Squires’ judgement would arise merely from the fact that a court judgement exists, which our Constitution enjoins us to respect." It is therefore prudent that the President should not ignore that a court judgement exists. Hence he should act.
President Mbeki correctly pointed out that in 2005 "We have had no precedent to guide us as we considered our response to the judgement by Justice Squires. We have therefore had to make our own original determination on this matter guided by what we believe is in the best interest of the Honourable Deputy President, the Government, our young democratic system, and our country." Fortunately in 2008 we now have a precedent that is guiding us as we consider our response to the judgement by Justice Nicholson. All we have to do is to act in the best interest of the Honourable President, the Government, our young democratic system, and our country as suggested by President Mbeki in 2005.
It took President Mbeki approximately two weeks to finish reading the Squires judgement and decide to "release" his Deputy, notwithstanding that he has requested his Deputy to resign a week earlier. It will most probably take him two weeks or less to finish readin the Nicholson judgement and proceed to "release" himself from his duties.
It is for above reasons that as a country we should welcome his resignation and deal with the consequences of it.
As I conclude, I wish to borrow from President Mbeki when he released his Deputy when he said "Personally, I continue to hold the Hon Jacob Zuma in high regard, and I am convinced that this applies to most Members of Parliament. We have worked together under difficult and challenging conditions for thirty years. In this regard, I wish to thank him for the service that he has rendered as part of the Executive, at national and provincial levels, sparing neither strength nor effort to ensure that, with each passing day, we build a better life for all South Africans.
I am certain that I speak on behalf of all who have served with him in Cabinet when I say that we shall remain friends, colleagues and comrades in the service of the people. And, as government, we shall continue to draw on his experience and expertise where the need arises." I am certain that our country, the continent and the entire global community will continue to hold Hon Mbeki in high regard. We wish to thank him for the service he has rendered as part of the Executive, paring neither strength nor effort to ensure a better life for all. This includes the sterling work he has done for the past 8 years to bring a deal in Zimbabwe.
We look forward to the Joint Sitting of both Houses of Parliament where the President of the country will announce his resignation. We should all welcome it.
