A ‘brains trust†of legal and academic experts is helping the ANC devise a strategy to get its president, Jacob Zuma, off the hook — possibly by closing all investigations and prosecutions relating to the controversial arms deal for good.
Key figures in the group are former judge Willem Heath, South African Institute of Race Relations president Professor Sipho Seepe and University of Cape Town deputy registrar of legal services Paul Ngobeni.
Heath, then head of the anti-corruption Special Investigating Unit, was controversially thrown off the original multi-agency arms deal investigation by President Thabo Mbeki in 2001. Seepe is a fierce Mbeki critic with as many friends as enemies in the ANC.
Heath was not available for comment at the time of going to press, but a source in touch with him told the Mail & Guardian Heath had been engaged by the ANC to work on the arms deal matter. The source said Heath was ‘the best person you could get on the arms dealâ€.
The ANC national executive committee appointed an internal task team in January to investigate the arms deal and to advise on ways to assist Zuma in his legal woes. Key members of this team are ANC treasurer Mathews Phosa, deputy president Kgalema Motlanthe and Housing Minister Lindiwe Sisulu.
Seepe and Ngobeni told the M&G this week that they were not paid ANC consultants, but confirmed having discussions with each other and with Heath.
Seepe said his ideas were for the benefit of the ANC task team — he was ‘aggressively occupying the space†of making himself heard.
Ngobeni denied being part of a concerted campaign to save the embattled ANC president, but said he had engaged in debates he believed were important for the country — ‘for the sake of our childrenâ€.
Ngobeni said Seepe first took an interest in his work when he wrote an open letter to the Constitutional Court judges condemning their handling of their complaint against Judge John Hlophe. Seepe had asked him to share his thoughts in the form of a document.
Aspects of the strategy developed by the three men appear to include:
Raising public consciousness about the ‘unfairness†of the investigation into and prosecution of Zuma on corruption charges relating to the arms deal;
Giving Zuma’s legal team ammunition to argue for a permanent stay of prosecution;
Using the fallout about the Constitutional Court complaint against Hlophe to argue that the courts are tainted and cannot be impartial; and
Ultimately closing the book on the entire arms deal saga, shutting down all further investigations and prosecutions.
Seepe told the M&G his ‘entry point†was the independence of institutions, which he said had been compromised. His initiative was not about protecting Zuma — ‘he is irrelevant,†he said — but about protecting institutions.
Strike one: the NPA
A prime case would be Public Protector Lawrence Mushwana’s 2005 report, which slammed then National Prosecuting Authority head Bulelani Ngcuka for saying there was a ‘prima facie†case against Zuma while at the time declining to prosecute him.
The NPA had not acted independently, Seepe said, and had ‘not acted†on evidence that Mbeki was also guilty of some of the things he ‘wants his contender prosecuted onâ€.
Seepe said the strategy was to raise public consciousness about the ‘unfairness†of the action against Zuma, which would give impetus to Zuma’s intended application to the Pietermaritzburg High Court for a permanent stay of prosecution.
He said the court would be shown that public opinion needed to be taken into account when considering Zuma’s case and that it would be in the interests of the stability of the country to ensure that the case is thrown out.
This is an issue Zuma’s legal team has said — in legal papers — their client would have raised had he been given an opportunity to make representations on the decision to recharge him. Reports and opinion pieces in the media would be used to show that the broader society felt Zuma had been singled out while others were left untouched.
Strike two: the courts
A second line of attack is to show that the court system itself is compromised — which happens to be a line now aggressively pursued by ANC secretary general Gwede Mantashe.
Much of the impetus here appears to come from Ngobeni, a long-time supporter of Hlophe, whose tussle with the Constitutional Court forms the backdrop for this line of attack.
Ngobeni joined the Zuma bandwagon in April when he wrote a litigation ‘Cookbook†in defence of the ANC president. The document argued that Zuma’s trial was politically motivated and gave tips on how the ANC president could be defended in court.
The brains trust argues, in similar vein to Hlophe’s own counter-complaint against the Constitutional Court, that its judges departed from acceptable procedure by going public with their complaint, but it goes further, questioning the impartiality of Chief Justice Pius Langa and his deputy, Dikgang Moseneke.
Seepe said the court had been ‘corruptedâ€. Moseneke, he said, was close to Mbeki, who had invited him to join the judiciary.
He added that ‘Langa cannot be an honest broker of Zuma’s case†as he had accepted an award from Mbeki, contravening international best practice on the independence of judges.
Mbeki bestowed a state honour, the Order of the Baobab, on Langa in April for his ‘exceptional service in law, constitutional jurisprudence and human rightsâ€.
Strike three: Parliament
A final thrust prescribed by the brains trust appears to be for Parliament to bring a close to the entire arms-deal saga. Said Seepe: ‘Parliament must order all investigations related to the arms deal to be shut down and then we must look at the lessons we should learn from the whole saga to make sure it is not repeated …
‘It is like the TRC [Truth and Reconciliation Commission]. A lot of people who should have been convicted were let go,†Seepe said.
It appears that such a process, if adopted, will effectively lead to a general amnesty for those involved in irregularities relating to the arms deal, but without a provision for full disclosure, which was demanded in the TRC process.
Prominent arms deal critics, including former ANC parliamentarian Andrew Feinstein, have spoken in favour of an amnesty, provided there is full disclosure.
Parliament is the only body with the power to grant such an amnesty and the reasoning will be that doing so will counter political instability.