By Tula Dlamini
Let me start by making a proviso. First - I support the decision by South Africa’s National Prosecution Agency (NPA) - officially dropping the 16 corruption charges against the President of the African National Congress - Jacob Zuma. The charges relate to contracts and subcontracts in what has become known as the ‘Arms Deal’. Second – I am journalist and not a lawyer – and thus accept my diagnosis of the issue below could be far-fetched.
However – it is perhaps worth highlighting that my ‘novice’ endorsement of the NPA decision resonates with an earlier verdict by Judge Chris Nicholson of the KwaZulu-Natal bench – who - on 12 September 2008 - declared the prosecution of Zuma for corruption and related charges was unlawful. In issuing his verdict - the learned judge said the following:
“For years- the applicant (Zuma) has been under threat of prosecution for serious corruption and yet never brought to trial. There is a ring of the works of Kafka about this”.
Former South Africa President Thabo Mbeki and the NPA disagreed and appealed against the verdict.
Background to the ‘imaginary’ chess contest
For the onlooker enjoying the comfort of hindsight- the alarm bells of political intrigue were loud and clear in the form of a collection of seemingly unrelated events – all involving Jacob Zuma.
For those unaware of Zuma’s illustrious liberation struggle credentials – his chief qualification for becoming South Africa’s deputy-president in 1999 was unquestionable loyalty and an acknowledged lack of desire to succeed his boss – former president Thabo Mbeki. According to this otherwise flawed analysis – Zuma – a self professed servant of the ANC - was a ‘pawn’ at the behest of the ‘king’- the then ANC president Thabo Mbeki.
Cynicism turned into panic - and in some quarters - absolute disapproval – when in April 2001 - front pages of almost all South African newspapers headlined with allegations made by the late State Security Minister - Steve Tshwete - that there was a plot to harm the then president Thabo Mbeki. Alongside the plot accused - Zuma’s name was mentioned – including that of former president Nelson Mandela and three prominent businessmen – namely; Mathews Phosa- Tokyo Sexwale and Cyril Ramaphosa - all respected members of the ANC and former presidential aspirants and therefore potential rivals of Mbeki.
The 'King's knight' guns for the 'pawn'
On 23 August 2003 – Bulelani Ngcuka - Mbeki’s chosen National Director of Prosecutions announced at a press conference that Jacob Zuma – then deputy president – had a corruption case to answer relating to the ‘Arms Deal’. Ngcuka added that ‘Zuma would however not be prosecuted because the case was not winnable’. Many questioned Ngcuka’s motive of accusing Zuma in public without the benefit of a trial.
In 2005 – Zuma’s friend and financial advisor – Shabir Shaik was convicted of fraud and corruption in a case related to subcontracts to the ‘Arms Deal’. Judge Hillary Squires concluded there was a mutually benefitial rapport between Zuma and Shaik. Squires implicitly accused Zuma of having received benefits from the ‘Arms Deal’ using Shaik’s companies and partners.
Fired
At the close of Shaik’s case – Mbeki asked Zuma to quit his job without the benefit of a trial. Zuma refused – insisting he was innocent and asking for his day in court. Mbeki opted to fire him even before subjecting him to any legal trial.
To add pain to injury – when Mbeki relieved Zuma of his post – he appointed as replacement – none other than the then Minister of Mineral Phumzile Mlambo-Ngcuka - wife of Bulelani Ngcuka – the man whom Zuma had accused of plotting the NPA charges.
Allegations of rape
Against the backdrop of a feud between Mbeki and Zuma – on 2 November 2005 - an investigation began into charges that Zuma had raped the 31 years old daughter of a deceased ANC stalwart at his home in Forest Town, Johannesburg. Charges were formally filed n the morning of 6 December 2005.
On 8 May 2006 – Judge Willem van der Merwe acquitted Zuma of the sole charge of rape. Delivering judgment – the learned Judge said the state had not proven the case beyond reasonable doubt.
Referring to the contradictory versions of the events of the night of 2 November 2005 - the judge maintained - "the probabilities favour the accused's version". He said Zuma would not have risked forcing himself on the woman when his own daughter was in the house and police were on guard outside - who would have heard the accused if she had cried out.
Special ‘Browse’ Mole Report
In 2006 – the same year that Zuma’s rape trial ended with an acquittal - the Directorate of Special Operation (DSO) produced a ‘Top Secret’ document known as the Special ‘Browse’ Mole Consolidated Report. The said report leaked to the South African public in 2007.
The report considered extremely inflammatory by the South African parliament – contains political intelligence and numerous allegations and unsubstantiated statements about prominent political figures in South Africa and leaders in African continent.
In essence - the document begins with a conclusion that the former Deputy President Jacob Zuma was involved in a conspiracy – which it says was a threat to the sovereignty and integrity of the South African State. The extract from the introduction reads as follows:
“The conclusion reached as a result of the present browse- is that there are strong indications that former Deputy President Jacob Zuma’s presidential ambitions are fuelled and sustained by a conspiracy playing out both inside South Africa and on the African continental stage”.
The document further implicates groupings like the South African Communist Party - the ANC Youth League - the SACP’s Youth League and Cosatu – who it portrays as seemingly disaffected from the presidency of Thabo Mbeki. The document further alleges that elements within the Security and Intelligence Services appear to be considering the subversion of the apparatus of State in support of a Zuma presidency.
According to the document - the former Chief of the South African Nation Defense Force (SANDF) - Siphiwe Nyanda allegedly raised the issue of possible alignment of the military in support of Zuma - as well as the possibility of a military coup to force President Mbeki to stand down - possibly with foreign military assistance. Zuma’s supporters are portrayed as having powerful links in the South African intelligence community – supported by a select group of senior Umkhonto we Sizwe (MK) leaders that are now part of the general staff of the SANDF
On the continental level – the document makes the claim that several Heads of State and leaders of African politico/military groupings - apparently alienated by South Africa’s perceived pre-eminence in the African Union and especially in Nepad - appear to be providing both funding and support to Zuma’s cause.
More specifically - the document portrays the President of Angola- Eduardo Dos Santos and Libya’s Muammar Kaddafi as giving support to the Zuma conspiracy. It alleges a $3 - $5 million financial support by the Libyan government - facilitated by the SACP Secretary General- Blade Nzimande - towards “promotion of a street level revolution in South Africa - in support of Zuma’s political aspirations.”
The document concludes with recommendations to pursue investigations via the South African Reserve bank to establish transactions that may affect the matter. It calls for briefing of appropriate agencies to investigate all allegations contained in the report. It characterizes the “Zuma camp” at one level as a broad front of the discontent- while at another level as a conspiratorial co-ordination whose players needed urgent identification and appropriate action taken.
On 30 May 2007 - the National Security Council appointed an Investigative Task Team - to investigate the leaked document. Perhaps it is useful here to highlight that the tapes - which became subject to the NPA decision to withdraw charges against Zuma - arose from the ‘Browse’ Mole Report investigations. The recordings were part of tapes obtained legally by intelligence agencies while probing an inflammatory spy document of the now defunct Scorpions.
The Scorpions disbanded following recommendations of the parliamentary committee investigating the matter. The unit had no intelligence service mandate and that they relied on private intelligence – the parliamentary committee pointed out in its submissions.
The “Browse Mole” report made headlines in 2006 after it leaked to the public – also finding its way to Cosatu general-secretary Zwelinzima Vavi in May 2007.
Daggers drawn
From the 16th to 20 December 2007 – the ANC held its 52nd national conference in Polokwane. The race for the party presidency was the highlight. Mob-like scenes and bitterness dominated the party conference – epitomized by acrimony between the only two leadership candidates – Zuma and Mbeki. The media dubbed the event "The Battle for Succession".
Zuma won the hearts of the majority of the more than 4,000 delegates – soundly toppling Mbeki. As ANC president – Zuma would automatically become the party’s presidential candidate in the April 2009 polls – the date on which Mbeki’s term was due to expire.
Zuma's defeat of the incumbent president Thabo Mbeki for leadership of the party brought up the notion of ‘two centres of power’ – leading to speculation of a perceived split between the Mbeki -led government administration and the Zuma led ANC.
Political vendetta alleged
On 28 December 2007 – hardly two weeks after the watershed Polokwane conference - the NPA recharged Zuma - now ANC president - with 18 counts including fraud – corruption - racketeering and money laundering. The NPA action instantly led to allegations of a political vendetta - suffice to say - triggering the beginning of an end for Mbeki’s role in the ANC.
On 4 August 2008 - Zuma asked the High Court to set aside the NPA’s decision to prosecute him and to declare it invalid. He was successful in his bid.
Delivering his verdict - Judge Nicholson inferred that some state actors were guilty of serious violations of the constitution approximating criminal intent – saying there was evidence they had ‘interfered’ with the independent functions of the NPA. He further pointed out that:
”The timing of the indictment (of Zuma) by Mr. Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane was most unfortunate”.
Mbeki appealed to the Constitutional Court - arguing that the Judge Nicholson's findings were "highly prejudicial to himself - both in his capacity as head of state supporters saw the move as an attempt to re-charge their leader -‘via the back and head of the national executive - as well as in his personal capacity" – Zuma’s door’. The spectre of a case - previously struck off the roll due to what Judge Nicholson had described as unreasonable delays was now real.
The ‘King’ under siege
On 21 September 2008 the ruling ANC unceremoniously withdrew former President Thabo Mbeki from office – a mere seven months before his time. Yet in all this - ANC party insiders confirm Zuma exhibited great maturity. Despite his own sacking as deputy President on South Africa by Thabo Mbeki and subsequent prosecution – remarkably - Zuma was opposed to the ousting of Mbeki before his office term but the majority in the ANC national executive committee insisted on Mbeki’s removal.
In the context of the current global economic meltdown and owing to the massive development challenges faced by South Africa - the manner in which Mbeki – despite his unquestionable intellect and sterling contribution to post apartheid South Africa - got the boot - was indeed a tragic display of party infighting - or - was it simply a case of the ‘pawn’ checkmating the ‘king’?
Mbeki had earlier appealed to the Constitutional Court. In his court submissions - Mbeki argued that he was not part of the hearing that informed Judge Nicholson’s findings. Observers had a field day talking about this twist of irony – pointing to the fact that Mbeki had earlier fired Zuma under similar circumstances – based on findings arrived at without duly consulting Zuma. In this logic – ‘what was good for the goose was not necessarily good for the gander’.
The Constitutional Court dismissed Mbeki's appeal. All eight Constitutional Court judges agreed that it was "not in the interests of justice to hear Mbeki's application at this stage"- adding that the decision was ‘due to the fact that the NPA was in the process of appealing the same judgment in the Supreme Court of Appeal.
Celebrations in the Zuma camp were short-lived. On 28 November 2008 – the Supreme Court heard the NPA appeal at which hearing - overturned Judge Nicholson’s ruling - that technically exposing Zuma to further prosecution. Judge Louis Harms read out the findings in a nationally televised hearing - saying the lower court had "overstepped the limits of its authority" by hinting at political interference in the case.
Checkmate?
In a surprise turn-around on 6 April 2009- with more than R100 million spent by the State in an attempt to prosecute Zuma- acting National Director of Public Prosecutions Mokotedi Mpshe announced the NPA was dropping all the Zuma charges – citing an abuse of process by the former head of the Directorate of Special Operations (DSO)- Leonard McCarthy.
Mpshe said Zuma’s lawyers had made serious allegations about the alleged manipulation of the NPA - substantiated by recordings of telephone conversations. The lawyers planned to use the said recordings in court during Zuma’s permanent stay of prosecution application. According to the NPA - the tapes were secured legally by intelligence agencies while probing an inflammatory ‘Browse Mole’ document of the now defunct Scorpions. With that – the NPA opted to withdraw its charges.
Following the NPA decision – on 7 April 2009 - the Durban High Court subsequently endorsed the NPA decision.
Additional Note:
We have witnessed in the ANC – what students of dialectical materialism call ‘the unity and conflict of opposites’. Conflict in this sense represents a source of ‘progress.’ Put differently – the reconcilable contradictions within the ANC represent the natural tensions between the ‘thesis’ (dominant theory) and the ‘antithesis’ (views that are alternate to the dominant theory). This blog is a humble attempt at arriving at a synthesis. According to dialectical science – this is how awareness evolves.
Retired Archbishop Desmond Tutu Emeritus and leading human rights campaigner - may have expressed his disdain of a possible Zuma presidency – however – he is also on record for suggesting that God’s standards are very low. “You will be surprised at some of the people you find in heaven” – Tutu once told an attentive crowd.
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