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OPINION: A constitutional line in the sand

It's game on.

Since the esteemed Financial Times of London broke the story that the Guptas offered Deputy Finance Minister Mcebisi Jonas the top job in December, speculation has been rife about whether Finance Minister Pravin Gordhan himself would survive and where power lies these days. The proxy 'war' between Gordhan, Sars and the Hawks has also been distracting, with President Jacob Zuma himself ostensibly removed from the political drama. Or so it seems.

Former ANC MP Vytjie Mentor added fuel to the fire by saying that she had been offered the job as Minister of Public Enterprises after Barbara Hogan was fired. Meanwhile, Gordhan was on a global roadshow trying to convince investors that South Africa was serious about dealing with its economic challenges. One could forgive investors in London and elsewhere for thinking that we really do prefer to shoot ourselves in the foot and limp merrily along. Gordhan was in Parliament on Wednesday and gave no hint of what was to come. Immediately thereafter his deputy Jonas spoke to the media. It is highly unlikely that Gordhan was unaware of Jonas' explosive revelation. In a sense, therefore, 'Team Treasury' is closing ranks against those who would seek to usurp its power. ANC secretary-general Gwede Mantashe has also warned against a 'mafia state', making no bones about where his support lies. Let us make no mistake, the battle lines have been drawn.

Jonas and the finance ministry drew a constitutional line in the sand yesterday. In his unprecedented press statement Jonas refers pointedly to the president's constitutional duty to appoint ministers and their deputies. We live in a constitutional democracy and so the president exercises his power to appoint ministers in terms of 91 (2) which states that, 'The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.'

Has the president therefore abdicated that constitutional responsibility to the Guptas, and one might ask, 'for what reason and in whose interests?' Many have asked whether this recent revelation could lead to Zuma's impeachment. That would need a two-thirds majority in the National Assembly in terms of s 89(1) of the Constitution. The ANC has the numbers, of course, although it could well be said that Zuma has committed a 'serious violation of the Constitution...'. Equally, a motion of no confidence in the president will need a 'majority' of the National Assembly members in terms of s 102 (2) of the Constitution. So, where the ANC has the numbers to defend the indefensible, it will need the party itself, outside of parliamentary rules, to deal with the president and the current situation.

The Guptas, meanwhile, have gone into fighting mode, challenging Jonas to take an oath in court confirming his statement. Some chutzpah they have, clearly emboldened by their long history with the president and their brazenness in summoning ministers and their deputies to their Saxonwold compound. Yet the Guptas are a symptom of our collective failure to hold government to account. If there is anything to take from the most recent developments, it is that there will always be rent-seekers.

The question is, how do we prevent them from undermining the voices of the people? In a country as unequal as ours, the voices of the poor and marginalised are drowned out by those who would shape policy and law as a direct result of their proximity to power. Of course, the scale of such corruption makes it even more dangerous.

There has been a great deal of talk about 'state capture' lately, a term which has been loosely bandied about as we try to understand the influence one powerful family seems to have on our president and body politic. Ann Lugon-Moulin defines it as follows, 'State capture can be further refined by distinguishing between types of institutions subject to capture (legislative, executive, judiciary, regulatory agencies, public works ministries) and the types of actors actively seeking to capture (large private firms, political leaders, high ranking officials, interest groups).'

Sounds pretty familiar, if not as systemic, to the requirements for complete capture of the state that would occur where there is a complete absence of the rule of law. This semi-capture of the state in our full view is causing poor governance as tenders are awarded in ways that undermine the rights of citizens and decision-making is skewed in favour of the powerful and politically connected. Yet, South Africa with its Constitutional Court and democratic institutions therefore is almost slightly anomalous, but these very institutions are under pressure and threat from those individuals who would capture the state - and understandably so because they threaten powerful interests.

And so we continue to watch an intense power struggle play itself out daily.

This power struggle is like none we have seen in post-apartheid South Africa and is frustrating for citizens who have to inevitably endure whatever the fall-out will be. And so Gordhan's position is tricky because quite patently he does not have the support of his boss.

But, one wants to put one's money on Gordhan because December did not happen in a vacuum. Zuma was substantially weakened then and his patronage is waning, as those close to him look to life 'Post-Zuma' and the ANC's 2017 elective conference. This is also a year of local government elections and a poor performance by the ANC will certainly also see Zuma's currency weaken considerably. At this point too it would take an act of immense political boldness by Zuma to fire Jonas and Gordhan, yet the current stalemate is also not an alternative.

Gordhan will need to play his cards carefully. State capture is difficult in places where transparency is a key governance principle. Shining light on the dark places is therefore critical in the next months. The Guptas have long-since been exposed and while the ANC has appeared impassive, the media has been doing its job. The ANC will have to do the necessary, find its backbone and rein in Zuma and his cronies to avert an economic crisis happening on its watch. Business and civil society need to add to the pressure too and find their collective voice.

Whether Zuma stays or goes, the damage he and his cronies have wrought has been extensive. We need to stem the tide of cronyism and patronage and limit any further damage as far as we are able. Mantashe himself has encouraged others within the ANC to come clean should the Guptas have approached them. Who will feel as emboldened to speak out next is the crucial question.

Judith February is based at the Institute for Security Studies. Follow her on Twitter: @judith_february

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