The projection of an argument for a legal or political settlement of the Zuma case, as always an attack on the judiciary or condoning corruption or even support for Jacob Zuma, is a caricature and an instance of intolerance that is the very antithesis of our Constitution.
A safe, secure and stable country is indispensible to our pursuit of a socio-economic development agenda aimed at addressing poverty and unemployment. The current political developments are a serious threat to that project.
Removing Vusi Pikoli, the suspended national director of public prosecutions, from office in a blatant attempt to protect a political loyalist has done irreparable harm to that institution and its independence and consequently its integrity will always be in doubt. Few believe that Pikoli will be returned to his job.
This unfortunate development must be condemned as vigorously as recent attacks on the judiciary and other Chapter 9 institutions, such as the Human Rights Commission and the Auditor General, among others. These ”politically expedient” attacks threaten the integrity of these institutions, the authority of which derives from their legitimacy.
A deeper analysis of the motives behind these clumsy interventions would reveal a shoddy attempt to deal with the symptoms of a much more complex threat to the safety and stability of our country.
Two individuals with impeccable struggle credentials find themselves at loggerheads with the laws that support the very Constitution that they fought so hard to see realised. Jacob Zuma and Jackie Selebi cut an awkward presence in the company of allegedly unscrupulous arms dealers and prominent criminal syndicates that are said to have been at the centre of graft and crime in our country.
To pursue them through the law is an important statement of our commitment to the rule of law and holding people accountable for their actions, but may well not be a sufficient measure to stem corruption and organised crime.
Arms dealers in developing countries, especially in Africa, have been notorious in their destabilisation methods. Often supported by their governments and backed by foreign intelligence operatives, they compromise well-positioned leaders, senior government officials and strategically placed intelligence and military personnel to ensure easy passage for their Âproducts. In many countries they have been associated with unseating political leaders who are often replaced by their cronies. Beyond the Zuma case, the conviction of certain individuals — and allegations against others who are powerfully placed – supports the view that we might have been similarly exposed.
Likewise, criminal syndicates are a destabilisation force, particularly in developing countries. Their activities are intelligence-led and often rely on the collaboration and protection provided by powerfully placed individuals in the criminal justice system. These collaborators would often be enticed with financial and other material rewards in exchange for their support. In addition, they work to ensure the effective disorganisation of security institutions and set them up against one another.
The coalescence of these two powerful forces has so rocked our political system that the centre, both in and outside of government, no longer holds. With it, the threat to our security and stability might be more severe than we are ready to admit.
In the full glare of the media the Khampepe Commission exposed us to the severe contradictions, infighting and contestation between the various agents in our security apparatus. As if that was not enough, the alleged involvement of senior National Intelligence Agency (NIA) officials in political divisions and the subsequent dismissal and trial of its former director general, Billy Masetlha, underscores the problem. The open fight between the National Prosecuting Authority (NPA), the Directorate of Special Operations (Scorpions) and other institutions in the criminal justice system highlights further the extent of the crisis. The Ginwala Inquiry into the National Directorate of Public Prosecutions’ (NDPP) fitness to hold office also revealed the lack of cohesion in dealing with these threats to stability.
The conflicting messages from various ANC leaders and alliance partners regarding these issues confirm the fact that the centre is dangerously fractious. In this context using the law as a blunt instrument will see us address only the symptoms of the problem and not the substance.
Although giving political directives to the NPA and the judiciary would be an unpalatable and dangerous encroachment on their independence, the suggestion of a political solution that is within the law cannot be dismissed out of hand. Three of these have been suggested and we must explore them with the stability of the country in mind.
The first is a proposed commission of inquiry with appropriate amnesty provision in exchange for reliable information provided to get to the bottom of both the arms deal and the work of criminal syndicates. This approach could encourage many, who might be hostages to the unsavoury relationship of the underworld of crime and the arms-dealing industry, to come forward with information that would enable us to root out the problem. If we could do this with those who broke the country’s foreign-exchange regulations and small, medium and micro enterprises (SMMEs) that evaded tax, it is hard to imagine why it would not make sense to do this on matters that threaten our stability so severely. This approach, which was used for the TRC process, has served our country well in the past.
The second is a proposal that the ANC president should not make himself available for the presidency of the country in the 2009 general election. This would see us avoid the potential stand-off between the executive and the judiciary (and possibly Parliament) in the event that he is prosecuted. Such a confrontation between these three important pillars of power in our society would be untenable. Importantly, this could ensure that both Zuma and Thabo Mbeki spend time to calm the storm clouds in the ANC; after all, they are the faces of these divisions.
The third is the introduction of legislation that would proscribe the investigation and or prosecution of a sitting president. Where this law exists it does not place such incumbents above the law, but assures that their investigation and prosecution is undertaken after leaving office. This addresses both the respect for the rule of law as well as the importance of ensuring stability.
The latter two proposals could possibly deal with the serious consequences of the assault on the NPA as a result of the pending disbandment of the Scorpions and dismissal of Pikoli. The NPA is an organ of state and an independent gatekeeper of the criminal justice system through the judiciary. The chief prosecutor is an appointee of the head of state, whose political party’s president is facing charges and is possibly a successor to the current incumbent.
Would a successor to Pikoli continue with the trial against the person who will be his boss? Would an unsuccessful prosecution enhance or diminish the standing of the NPA in the eyes of a public sceptical about the independence of that body? What would that make of the relationship between the NPA and the executive arm of government? A head of state is the commander-in-chief of the armed forces and other security structures. Would the prosecution of a sitting president not result in the kind of polarisation among criminal justice institutions that would make our country the playground of rogues and criminal elements?
The dangers that come with seeking to change laws and institute special dispensations to deal with special circumstances are real. But to bury our heads in the sand and rigidly chase an oncoming train can be equally disastrous.
Sipho M Pityana is a director of companies. He writes in his personal capacity