[OPINION] The ‘funny democracy’ of Jacob Zuma

President Zuma has not had the best week, starting with being booed off stage at the Cosatu May Day rally this past weekend. Party chairperson Baleka Mbete seemed confused when she too was booed off stage to chants of ‘Gupta!’.

At the World Economic Forum where new Finance Minister Malusi Gigaba could provide no further clarity on ‘radical economic transformation’, though Zuma said it would lead to ‘inclusive growth’- a slogan within a slogan, in other words. At the WEF, Zuma also said that the booing was all part of a healthy democracy. He is right that something is stirring within and outside of the ANC. Quite how it will all unfold remains to be seen.

In a hard-hitting interview with the BBC, former president and ANC secretary-general Kgalema Motlanthe said that he thought Zuma ought to have stepped down after the Constitutional Court judgment on Nkandla. He also called utterances by Water and Sanitation Minister Nomvula Mokonyane in the relation to the recent credit downgrade ‘populism of the worst kind.’ Former Finance Minister Pravin Gordhan has also come out in support of a judicial inquiry into state capture. Another former Finance Minister Trevor Manuel, speaking at WEF Africa, repeated this call.

On Thursday the Pretoria High Court ordered Zuma to hand over all records related to the recent Cabinet reshuffle. The Democratic Alliance approached the Court for the record of decision-making as well as the so-called intelligence report Zuma said he relied upon. He has five days in which to do so.

Yet, despite all these setbacks - legal and political - probably the most important piece of news came from the Western Cape High Court recently when Judge Lee Bozalek, with Judge Elizabeth Baartman concurring, set aside two determinations by former Energy Minister Tina Joemat-Pettersson which are to lay the basis for future nuclear procurement. The application, brought by civil society groups doggedly pursuing the matter, means that the so-called ‘nuclear deal’ is going back to the drawing board.

The court found that the South African-Russian nuclear co-operation deal was ‘unconstitutional and unlawful’ given that there was no public participation in the process. The reality is that the deal has been shrouded in secrecy. The nature of the international agreements meant they had to be tabled in Parliament in terms of section 231 (2) of the Constitution, the court held. This required the approval of both houses of Parliament. However, the minister curiously tabled the international co-operation agreements between the US, Russia and South Korea in terms of s231 (3), which does not require parliamentary endorsement. That section states that agreements of a ‘technical, administrative or executive nature’ need not have the approval of both Houses of Parliament and only need to be tabled ‘within a reasonable time’, That, the court held, was irrational.

It says much about Parliament’s neglect of its oversight role that the minister was allowed to flout process in such a manner when clearly the agreements fell outside of s231 (3). Why was Parliament silent on this failure of procedure? Some answers ought to be forthcoming surely?

The court ruling somewhat thwarts Zuma’s nuclear plans - for now.

For a number of years there have been serious reservations regarding the nuclear deal. In addition to exorbitant cost and the secret nature of the process, there are safety and environmental issues to be considered. The National Development Plan encourages a host of alternatives to nuclear. It seems, of course, that the president in particular is hell-bent on the nuclear option to provide South Africa with 9,600 MW of nuclear power.

The draft 2016 integrated resource plan (IRP) ought to be the primary policy guide and describes a future energy mix that includes, but is not limited to, nuclear energy. But, aside from the IRP, the National Development Plan has a clear commitment to an ‘energy mix’ which would include renewable energy sources. Government seems for some reason to be relying on the 2010 IRP that suggests 9,600 MW nuclear power is needed.

Government’s dogged pursuit of nuclear above everything else is confusing in many ways. Joemat-Pettersson was on record as saying that that the deal would create thousands of jobs and also ‘place a considerable order to local industrial enterprises worth at least $10 billion’. That really did sound like arms deal déjà vu and the so-called National and Defence Industrial Participation Plans. The nuclear deal will in fact dwarf the arms deal of 1999 in both size as well as its potential for corruption.

In 1999 then Treasury official Roland White warned that South Africa’s commitment to the arms deal would depend on its ‘appetite for risk’. The failure of the arms deal and the associated corruption has caused an inestimable amount of damage to our democracy and its institutions. It’s worth learning the lessons from the past.

In addition, Section 217 of the Constitution is quite clear regarding procurement processes when it says they should be, ‘in accordance with a system which is fair, equitable, transparent, competitive and cost-effective…’ Parliament also has a constitutional duty to ensure that it exercises oversight over the executive and now has a fresh opportunity to redeem itself after its failure to deal with the breach of procedure by the minister in tabling the international agreements mentioned above.

The bold Western Cape High Court ruling shows that this nuclear deal is all of our business and there can be no place for secrecy when the state is about to commit us all to billions of rands in expenditure and bind future generations.

New Energy Minister Mmamoloka Kubayi has committed herself to transparency.

There are hints that government will appeal the Western Cape High court decision. Zuma, in all likelihood, will want to forge ahead in some way. He has, after all, shown a casual disregard for the courts and has little appetite for accountability. Given the intense scrutiny from the prying public and vigilant civil society organisations, this will prove challenging. At the very least Zuma will find that court processes will delay any potential deal. That will be somewhat inconvenient for those who stand to benefit handsomely from the proposed deal.

Zuma once said democracy is a ‘funny thing’. His associates must be standing in the wings somewhat irritated and perhaps not finding it so funny after all.

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