High stakes in Hefer sequel

It has been the 18 months that have shaken the African National Congress since the Mail & Guardian revealed in November 2002 that Deputy President Jacob Zuma was being investigated by the Scorpions for allegedly requesting a bribe from the arms contractor Thales.

What followed was a battle that cut to the heart of the ruling party as two sons slugged it out. In one corner was Bulelani Ngcuka, the head of the National Prosecuting Authority (NPA) - a symbol of a modern ANC and leader of an institution started by the ruling party to drag the moribund criminal justice system into the 21st century.

In the other was Zuma, an ANC elder and a man possibly more popular than President Thabo Mbeki. Though strong-armed into declaring that he had no presidential ambitions, Zuma has widespread support in the ANC and in the broader alliance with the Congress of South African Trade Unions (Cosatu) and the South African Communist Party.
Until the revelations it was clear that he was popular enough to put his name in the hat of successors to Mbeki.

An internecine battle has been fought in the ANC - and a fortnight ago another front opened when Public Protector Lawrence Mushwana weighed in with his report which upheld a complaint by Zuma against Ngcuka. Divisions and confusion in the ruling party about the Scorpions and the investigation into Zuma are apparent.

Last year, ANC secretary general Kgalema Motlanthe described the Scorpions’ investigation of Zuma as “dirty tricks of a special type” in City Press. He added that “no matter and how long they investigate Zuma, they will not come up with anything”.

This position has been finessed significantly. Now the ANC stresses the importance of letting the law run its course and of bolstering the democratic institutions — like the Public Protector and the National Directorate of Public Prosecutions — it has set up.

“It’s good for democracy when one checks on the other,” said spokesperson Smuts Ngonyama this week about the fight between Mushwana and Ngcuka. “We never protect one individual against an institution, but no individual’s constitutional rights should be trampled.”

For the ruling party, the imperative is to present a visage of unity as well. “It’s a bit confusing to people out there as they would expect a fall-out in the movement. But there’s none at all.”

Where will it end? Next week, the battleground moves to Parliament where an ad hoc committee will consider the Public Protector’s report, which found not only that Ngcuka had not cooperated with Mushwana, but also that he had treated Zuma in an “unfair and improper” manner. The denouncement will come in October when Schabir Shaik is tried for fraud and corruption - or if Ngcuka decides to use his prima facie evidence to prosecute Zuma.

The following is a guide to the principal actors in the Zuma drama, what is currently at stake for them and the political strategies they are using.

Bulelani Ngcuka
Until he decided in August 2003 not to prosecute Zuma but to declare that there was prima facie evidence of corruption against him, Bulelani Ngcuka could do no wrong in the court of public opinion.

That decision was criticised and eventually resulted in the Hefer commission, which probed whether he was an apartheid-era spy. Now Ngcuka faces a challenge arguably bigger than the Hefer commission when Parliament next week scrutinises the public protector’s report.

The inaugural national director of prosecutions, he is also leader of the elite investigating unit, the Scorpions. After taking office Ngcuka became a symbol of the fight against crime and corruption. His image as a tough and independent official was bolstered by the prosecutions of Tony Yengeni and Winnie Madikizela-Mandela. When it was revealed that he was going to take on Zuma, it seemed his star would continue rising.

But Zuma took on Ngcuka in the most bruising post-apartheid political battle yet. Claims emanating from the Zuma camp that Ngcuka was an apartheid-era spy resulted in the Hefer commission, from which he walked away legally squeaky clean but politically damaged.

In the months that followed, it became clear that among the ANC rank and file Ngcuka was perceived to have gone too far. One event symbolised this. At last year’s Cosatu congress, thousands of workers acclaimed Zuma’s presence, singing “Wena ulawula ama Scorpions sitshele ukuthi uZuma wenzeni? [Head of the Scorpions, tell us what our leader has done?]”.  In publicly criticising the public protector’s report, he may have over-played his hand again.

Sources suggest Nguka is not about to quit, though he is unlikely to serve out his full term. Indications are that he regards the completion of the trial against Schabir Shaik as crucial to vindicating his position on Zuma, which he wants to do before he leaves. For him, this will make his legacy. It is also why he has fly-swatted Mushwana’s report, seeing it as a hindrance to what is his central business.

Credible sources suggest there is still a serious effort to bring French witnesses on board, which would strengthen his hand.

Deputy President Jacob Zuma
Those in the eye of the storm are often safest — for a while. Zuma has emerged relatively unscathed from allegations that he was involved in corruption in the arms deal.

Although it has been public knowledge that he has been under investigation by the Scorpions for this alleged involvement since the end of 2002, his political standing in South Africa in general, and the ANC in particular, remains so strong that Mbeki reappointed him as the country’s deputy president after this year’s election. Zuma is a popular character in the ANC because of his efforts to stay in touch with the rank and file and for his role in the anti-apartheid struggle.

But - in the public mind - Zuma’s chances of succeeding Mbeki have become interwoven with the ongoing allegations that he accepted a bribe from a French weapons company. But, if Shaik is found guilty, it is going to be virtually impossible for Zuma to avoid replying to every charge against him - something he has effectively avoided doing until now.

For the moment whatever the allegations flying around his head, Zuma can correctly claim he is not facing any formal charges.

African National Congress
The intemperate language that  Ngcuka used to describe the public protector’s finding - that he had abused his power while investigating the allegations against Zuma - has probably resulted in many in the ANC closing ranks against him.

While ANC officials often differ on many issues, the organisation has traditionally shown little stomach for those who publicly reveal disunity in its ranks. This may be a hangover from the days when it was a banned liberation movement. Ngcuka’s personal remarks about Mushwana, was also seen in the ranks of the organisation as an unwarranted attack on an institution to which the organisation is committed.

The instinctive response of many senior ANC officials is that Ngcuka should have taken his complaints to Parliament or other official channels - not thrown a tantrum for all to see.

But the closing of the ranks does not mean that Ngcuka is finished in the ANC.  Though he is no longer an executive member of the organisation, he obviously still draws political authority from it.

Furthermore, although he may be  furious with Ngcuka for breaking ANC discipline, Mbeki moved to protect Ngcuka when he faced allegations that he was an apartheid spy, by establishing the Hefer commission. There is also a view in some quarters of the ANC that Ngcuka only tackled politically sensitive cases with a nod from the Presidency. The protection of the president counts for much in the ANC.

The appointment of Ngcuka’s wife, Minister of Minerals and Energy Phumzile Mlambo-Ngcuka, as acting president recently was seen in some quarters as Mbeki’s vote of confidence in Ngcuka.

President Thabo Mbeki
Whether true or not, Mbeki is widely perceived as the hidden hand behind much of the Zuma saga.

Mbeki’s political interest is seen to be his desire to influence who the ANC selects to be the party’s - and the South Africa’s - next president. Currently, Zuma is a strong contender.

But Mbeki cultivates an image as a modern president who has established institutions that must be seen to work. As a result, others argue the president simply told Ngcuka to do his job when the allegations were first brought to his attention and has protected him ever since.

When Zuma learned of the investigation, he brought his considerable personal political influence to bear against Ngcuka. This was best illustrated when accusations were levelled at Ngcuka by Mo Shaik and Mac Maharaj - both close comrades of the deputy president - that he was an apartheid spy.

Mbeki then appointed the Hefer commission, which cleared Ngcuka of the allegations. Again, Mbeki’s move was seen to be either to protect Ngcuka or to simply deal with the  problem.

However, faced with Zuma flexing his political muscle and Ngcuka mishandling the announcement that he did not intend to charge the deputy president, Mbeki has needed to become increasingly circumspect in his handling of the saga which threatens to damage his government. He has increasingly tried to put distance between himself and the mud-slinging by taking a cautious, legalistic approach to the affair.

The Public Protector
Mushwana came to the Office of the Public Protector in November 2002 through a revolving door from Parliament, where he served as an ANC MP. Criticism greeted his appointment and aspersions were cast on his ability to act independently. A complaint to his office from  Zuma lodged last September was his first political hot potato and the resultant 94-page report bears the hallmark of a man trying to do a decent job. It has none of the political expedience of the special report on the arms deal, for example.

A lawyer by training - he started practising in 1972 - Mushwana is taking on the mantle of protector by reverting to his legal training and putting politics aside.

Clearly, he has decided that his new position will define his legacy. Mushwana is not an ANC heavyweight and distinguished himself at Parliament as a technocrat.

He takes his new appointment seriously and the stakes for him rest in the credibility of his report being affirmed by Parliament.

Mushwana left Parliament as deputy chairperson of the National Council of Provinces; he served on several parliamentary committees and clearly enjoys standing at the legislature, a factor which will count when Parliament deliberates over the next fortnight.

While many may not agree with it, his report is well-argued and highlights the Scorpions’ propensity to see itself as a Chapter 9 institution of a special type. Laced throughout Mushwana’s report are accounts of how his office is not taken seriously as it attempted to deal with one of the most serious complaints yet lodged with it.

He says a key letter from the NPA was “phrased in an aggressive and defensive matter and provided no assistance to the public protector, as is required by law”. Furthermore, it “insulted the public protector by insinuating that he is a liar and incompetent ... [and] created the impression that the prosecuting authority regards itself as beyond question and criticism”. - Ferial Haffajee, Sam Sole & Paul Stober

Eighteen months that shook SA
November 2002: The Mail & Guardian breaks the story about the National Prosecuting Authority’s (NPA) investigation into allegation against Deputy President Jacob Zuma regarding a bribe relating to the arms deal.

August 23 2003: National Director of the NPA Bulelani Ngcuka issues a press statement saying that there is a prime facie case of corruption against Zuma, but that he will not be prosecuted because the prospects of success “were not strong enough”. In the same statement Ngcuka says that the corruption case against Schabir Shaik, Zuma’s financial adviser, will continue.

September 7 2003: City Press publishes an article alleging that Ngcuka might have been an apartheid spy.

September 19 2003: President Thabo Mbeki appoints the Hefer Commission of Inquiry to investigate, firstly, whether Ngcuka was an apartheid spy and, if so, whether he abused the powers of his office. Hefer found that Ngcuka was “probably not a spy”.

October 30 2003: Zuma lodges a complaint with Public Protector Lawrence Mushwana about the manner in which the NPA’s investigation of him was conducted.

February 25 2004: Mushwana gives Ngcuka copies of letters he addressed to then minister of Justice Penuell Maduna drawing Ngcuka’s attention to Zuma’s contention that the criminal investigation against him was still continuing as a summons had been sent to a businesswoman, Norah Fakude-Nkunu—“the context of which relates to such further investigation.”

March 5 2004: NPA head Leonard McCarthy writes a letter on behalf of Ngcuka and Maduna to Mushwana saying that his letters were “distressing if not confusing”. Ngcuka and Maduna refuse to hand documentation to Mushwana related to the Zuma investigation, sayinq that this would compromise the state’s pending case against Schabir Shaik.

May 28 2004: Public Protector finds that Ngcuka’s statement that there was prima facie evidence against Zuma into corruption allegations “‘unjustifiably infringed” upon his constitutional right to dignify. Mushwana also asks Parliament to take urgent steps to ensure Ngcuka and the NPA are held accountable for not cooperating with him while probing Zuma’s complaint.  A war of words follows during which Ngcuka and Maduna accuse Mushwana of confusing “an intellectual challenge with a refusal to cooperate”. Mushwana says that they insinuated that he was a “liar, and incompetent”.

June 3 2004: Ngcuka makes a public apology for “losing his cool” but refuses to apologise to Mushwana personally. He vows to rip the report apart when it appears before a parliamentary ad hoc committee appointed to investigate it.

This week backbencher Ismail Vadi, African National Congress MP, is appointed chair of this ad hoc committee.

October 11 2004: Shaik trial – Compiled by Vicki Robinson

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