The Zuma debate: Deal!

To get out of our political pickle as a nation, ANC president Jacob Zuma needs to be liberated from his. There are two paths to take: either he gets his day in court or there is a deal to get him off the hook. Increasingly, consensus in the ruling tripartite alliance, the private sector and parts of the intelligentsia are building towards the need for a political deal of some sort.
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Moe Shaik: Point

“What I do know now, and didn’t know then, is that in the long run, motive matters more with good deeds than it does with bad. When all the guilt and shame for the bad we’ve done have run their course, it’s the good we did that can save us. But then, when salvation speaks, the secrets we kept, and the motives we concealed, creep from their shadows. They cling to us, those dark motives for our good deeds. Redemptions’ climb is steepest if the good we did is soiled with secret shame.”—Gregory David Roberts, Shantaram

The prosecution of ANC president Jacob Zuma is wrong. It is being done neither in the public interest nor in the interest of justice. To a vast many South Africans the origins of this prosecution are soiled with the secret shame of the effort to prevent Zuma from assuming high office. It is strongly believed that “the rule of law” and “the fight against corruption” arguments are used as a mere context in which to pursue this motive.

In this way the fundamental basis of the rule of law is undermined. The National Prosecuting Authority (NPA) is expected and under a duty to act impartially at all times. In this parody of justice it matters not whether Zuma is innocent, it matters only that he should not assume high office. Herein resides the secret shame of those who sought to use the NPA for this end. In the words of Justice Joos Hefer: “One cannot be assured that the prosecuting authority is being used for the purpose for which it was intended.” The issue at hand is not whether the rule of law should prevail but whether the abuse of the rule of law should continue.

It is said that the genesis of the criminal charges against Zuma is based on the conviction of Schabir Shaik, which in turn originates in the investigation into the arms deal. Yet those who are knowledgeable about the arms deal know that Zuma had nothing to do with this procurement. The final contracts in the arms deal were managed by the national executive and were concluded in December 1998. At that time Zuma was serving as minister of economic affairs in Kwa-Zulu-Natal; his appointment as deputy president of the republic took place in July 1999.

Shortly after the Joint Investigation Team (which included the NPA) concluded that the arms deal was free from corruption at the primary level, the NPA initiated an investigation (August 2001) into corruption arising from the deal and in which they viewed Zuma as a suspect. In this strangeness it remains the secret shame of those who knew better and chose to remain silent. They should have taken the NPA into their confidence and explained to them Zuma’s non-involvement in the arms-acquisition process. It would have been the right thing to do and would have saved the country much pain and cost.

In the abuse of power the NPA was an instrument. But, in its own right, it too abused the power vested in it. This abuse of power took the form of legal persecution disguised as prosecution. From the very onset of their investigation some seven years ago, the NPA, under the leadership of the then National Director of Public Prosecutions, Bulelani Ngcuka, adopted an extremely aggressive, prejudicial and adversarial attitude towards Zuma. For example, the NPA initially concealed the fact that Zuma was being investigated. This was followed by a steady stream of information leaked to the media by elements within its ranks, linking him to acts of corruption.

Had the Zuma trial occurred in a more developed democracy, many of the prosecutors and investigators who planted prejudicial information in the media would either be imprisoned for their contempt of court or at least face disbarment for professional misconduct. Elements in the NPA abused the rule of law and, as a result, undermined the public’s confidence in the NPA’s integrity.

The NPA adopted the position that it was not prepared, for reasons of policy, to confirm or deny these media reports. The then minister of justice stated publicly that he did not know whether Zuma was under investigation. And yet the NPA declared in later court affidavits that they had briefed the minister of justice all along. On several occasions, via his attorneys, Zuma offered the NPA his full cooperation in their investigation. The NPA never took these offers seriously and the acrimony towards Zuma was perpetuated.

The Public Protector’s report of May 2004 in respect of the complaint lodged by Zuma further highlights the acrimonious approach adopted by the NDPP and the NPA towards Zuma. Despite the Consititutional Court’s recent ruling on the legality of the matter, the NPA’s and Directorate of Special Operations’ dramatic raids on Zuma’s home and the offices of his attorneys, in the full view of the media, deepened the acrimony.

As a result, this hostility spread like a virus across the country, infecting all and sundry and causing unhappiness and division. Strong opinions are held on both sides of the divide and almost all constitutional institutions have been affected by it. In pursuit of strongly held opinions and views balance has been lost and, in the process, effective governance has stalled and the pride of the nation has suffered. The continued prosecution of Zuma will further divide the country more than it unites.

Many are asking whether the national interest requires that the interest of justice be pursued in ways other than by judicial confrontation. In the current context this is the right thing to do and this approach should be encouraged. It is being suggested that, as a way forward, serious consideration should be given to offering Zuma a plea-bargain agreement. Others have called for the granting of blanket amnesty or indemnity from prosecution. These approaches have in common the correct assertion that following through with the court case is not in the best interest of the country. In any event it would appear that the right to a fair trial has been so utterly compromised that it may now not be possible to hold a fair trial.

Yet, before we consider plea bargains, amnesties and indemnities, we need to consider whether Zuma should be prosecuted in the first place. Zuma has maintained his innocence consistently. The conduct of the NPA in relation to Zuma suggests that its interpretation of the facts, thus far, has been prejudicial to him in that it is conviction-seeking rather than truth-seeking. 

The interests of justice would be better served if Zuma was provided a fair opportunity—in an environment free of political manipulation and prejudice - to present an explanation to the NPA. The founding legislation of the NPA provides for this truth-seeking interaction and is an important instrument to assist the NPA to arrive at a decision whether to prosecute. The NPA has provided this opportunity to others and should do so for Zuma. The right to make these representations to the NPA and the review of their decision to prosecute is at the core of Zuma’s legal challenge in the Pietermaritzburg High Court.

It is not the function of the NPA to wage judicial war against an accused but to assist in the administration of justice. It is clearly not its function to “win at all costs” and the administration of justice is not a game to be played. The NPA is a servant of the law and in its efforts to ensure that guilt shall not escape it must also ensure that innocence does not suffer.

Accordingly, a judicial confrontation can be avoided if there is a sufficient willingness within the NPA to treat the Zuma matter in an impartial and truth-seeking manner. In this new environment there would be no reason why Zuma would not renew his willingness to cooperate with the NPA to establish his innocence. As in previous matters, Zuma has demonstrated a remarkable capacity for reflection. A non-adversarial environment can create the conditions for all concerned to calm down and reflect on the important lessons that need to be learned from all of this. In this way we would enhance the well-being of the nation and regain our confidence in our constitutional organs of governance. 

Lastly, it was correct for Schabir Shaik to assist Zuma as a comrade and as a friend. There was no wrong in this and his intention was based on human solidarity rather than on criminality. On reflection, however, it would appear that he did on occasions inappropriately advertise his association with Zuma. Herein resides his secret shame that soils his good deeds and presents, for the rest of the Shaiks, an associated regret and sorrow. In this there are lessons for others.