/ 20 March 2009

What Zuma told the NPA

Jacob Zuma's legal team has given prosecutions boss Mokotedi Mpshe what it believes are two reasons for dropping charges against the ANC president.

Jacob Zuma’s legal team has given acting prosecutions boss Mokotedi Mpshe what it believes are two strong reasons for dropping charges against the ANC president, both involving fresh ‘evidence” of wrongdoing by former president Thabo Mbeki.

National Prosecuting Authority (NPA) chief Mpshe is under intense pressure to drop the charges, but has not reached a decision.

On Tuesday a premature leak that charges would be dropped was circulated among Zuma supporters by SMS and on Wednesday it was carried on the front pages of several newspapers as a fait accompli.

The NPA said in a statement it had ‘recently been supplied with additional information by Zuma’s lawyers which has necessitated further investigation, verification and careful consideration”.

No further details were released, but the Mail & Guardian has established that the two principal strands of evidence put before Mpshe concern:

  • Mbeki’s role in the 1999 arms deal and new details of his alleged involvement in impropriety in the awarding of contracts for new defence equipment.
  • Claims that Mbeki influenced the Scorpions’ controversial ‘Special Browse Mole” report, which raised concerns about funding and support for Zuma from Libya and Angola as well as the possibility of violent resistance to his prosecution.

Six people with differing views on the case, who have been briefed on Zuma’s representations to Mpshe or seen them personally, independently confirmed this outline.

A legal source with access to the Zuma camp outlined the arms deal component of the representations as a strategy ‘to discredit lots of people … how much others got [in the arms deal]. I think they have real information”.

Mbeki has faced repeated claims that he interfered in the allocation of contracts for frigates and submarines built by German consortia. The M&G revealed last year that information passed to risk consultancy Kroll by former National Intelligence Agency official Paul Madaka suggested Mbeki personally facilitated a large kickback. Madaka has since died and Mbeki has consistently denied impropriety.

The legal source confirmed that Mbeki was the main target of Zuma’s representations, although he did not know if the allegations were true. ‘It was very strong, very virulent; a full-out attack.”

Others put it similarly: a Zuma strategist said the representations ‘spilled the beans regarding other characters and specifically with reference to Mbeki”.

He said he understood Zuma had told Mbeki personally that he [Zuma] had knowledge of Mbeki’s involvement in arms deal corruption and would disclose it if he [Zuma] was tried. ‘Imagine the impact on the country.”

An insider with knowledge of the NPA’s approach confirmed this, saying the Zuma team initially made oral allegations about Mbeki’s arms deal role, but was told these were not substantial enough to warrant consideration unless backed by documentary evidence. Those documents were supplied, he said.

In the Zuma camp there seem to be differing views on how strong a case they have made of wrongdoing by Mbeki and how relevant it will be in any decision to drop charges.

The legal source said Zuma’s team was advised that the NPA would give more weight to evidence of Mbeki’s interference in the prosecution, something they see as supporting his alleged involvement in the Browse Mole affair.

South African legal thinking valued probity of process, he said, and if abuse could be demonstrated it must be taken seriously.

Legally speaking, ‘the fact that the other guy has also done wrong merely means you must also open a docket against him,” the source said.

The arms deal claims would remain an important part of the strategy as they may convince Mpshe of severe ‘implications for South Africa” if both the sitting and former presidents were prosecuted.

Proponents of a ‘political solution” for Zuma have consistently argued that his trial and its fallout would place intolerable strain on institutions of justice and the Constitution.

A second Zuma camp insider, who claimed to be familiar with the representations, also stressed the Browse Mole saga more heavily than the arms deal allegations.

This person said the NPA had been presented with Zuma’s side of the story for the first time, including his characterisation of his relationship with fraud convict Schabir Shaik.

The source said Mpshe had been given evidence of ‘significant” violations by the Scorpions.

This person said there was mounting evidence that Mbeki influenced former Scorpions boss Leonard McCarthy in the commissioning and production of the Browse Mole report.

McCarthy tasked senior special investigator Ivor Powell with pursuing evidence of foreign funding for Zuma, as well as the planning of protests, and even a military coup, if he did not become president.

Leaked to Cosatu, the report was used to discredit the Scorpions and show the unit was engaged in unauthorised intelligence work targeting Zuma.

It was also used as one pretext for the dismissal of former NPA boss Vusi Pikoli, on grounds that he was not adequately sensitive to national security.

Mbeki’s staff condemned the report at the time, and director general in the presidency Frank Chikane has continued to do so, but Pikoli told Parliament that Mbeki had told him its contents were largely true. He also said McCarthy commissioned the report after receiving evidence from a Swiss investigating magistrate about money laundering.

The thrust of Zuma’s representations, however, is that Mbeki provided impetus or direction.

The Zuma camp source implied that McCarthy may already have indicated a willingness to cooperate with them or at least would spill the beans to protect himself when questions were asked about his role: ‘A lot of people are trading secrets now,” this person said.

He refused to confirm or deny whether a deal had been struck with McCarthy.

The legal source also confirmed that McCarthy’s name featured prominently in the representations about interference.

McCarthy, now vice-president for integrity for the World Bank in Washington DC, did not respond to messages left on his cellphone and with his secretary.

Mbeki’s spokesperson, Mukoni Ratshitanga, was uncontactable.

Many in Zuma’s team believe this information, with an assessment by his attorney Michael Hulley of the weaknesses in the case, have convinced Mpshe — whom insiders say is increasingly withdrawn — to drop the charges, despite resistance from the prosecution team.

Mpshe was ‘more than likely” to do this, the strategist said, particularly given the intense focus on him. ‘It would take a very brave man to prosecute, especially if there’s the slightest indication of political interference.”

The NPA would be embarrassed if they forced Zuma to disclose this evidence in open court, he said. ‘At this stage they still have an opportunity to withdraw with some dignity.”

This week’s leaks, which called in to question the legal correctness of the process, prompted furious damage control, culminating in an attack by Housing Minister Lindiwe Sisulu and the ANC Youth League on Moe Shaik, who on Tuesday told University of Pretoria students that the next day’s papers would report charges had been dropped.
Independent Newspapers quoted Sisulu, who heads the Luthuli house task team working to get Zuma off the hook, saying the ANC was angry with Shaik and that the process must be seen to be fair and transparent.

Hot documents
A senior member of the ANC’s national executive committee told the Mail & Guardian‘s Matuma Letsoalo that the new evidence handed to the National Prosecutings Authority included:

  • Affidavits implicating Thabo Mbeki in improper conduct by former ambassador to France Barbara Masekela. Masakela has admitted she was present at meetings with French arms company Thint attended by Mbeki. Mbeki has claimed he cannot remember these.
  • National Intelligence Agency reports of meetings between Mbeki and members of consortia bidding in the arms deal.
  • Confidential correspondence between senior government officials and consortium members, obtained by the ANC task team set up to probe the deal.

Other complaints included claims that two senior Cabinet ministers close to Mbeki benefited from the deal and that Mbeki’s protection of police chief and corruption accused Jackie Selebi showed he was not even-handed.