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Watching the dramatic events that set Jacob Zuma free this week, I could not help but feel we had come full circle, and that we were witnessing an action replay of the unsavoury event which started the whole thing: Bulelani Ngcuka’s notorious 2003 announcement that although there was a “prima facie case of corruption” against Zuma, he would not be charged because the case was “unwinnable”.
Is that not, in essence, what the current National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, told the nation on Monday? That although there was nothing in Zuma’s representations to cause the National Prosecuting Authority to reconsider the “substantive merits” of the case, the “abuse of process” by Leonard McCarthy had rendered the National Prosecuting Authority’s (NPA) hands dirty and thus the case unwinnable?
Now, as then, a political decision by the NDPP has been cloaked in legalese. Now, as then, one of the country’s key organs of state—the law itself—has been compromised.
Most in the ANC believe—as Mac Maharaj put it in a radio interview on Monday—that “the rot that set in under the Mbeki era is now being exposed”.
In a statement following the NPA decision, South African Communist Party boss, Blade Nzimande, sneered that the media was engaged in the diversionary tactic of “focusing on how information may have gotten into the hands of Zuma’s lawyers ... That’s not the issue. The issue is that organs of state have been abused.”
Precisely because the matter at hand is the abuse of the organs of state, it is entirely appropriate to ask how the Zuma legal team landed up with classified recordings which Mpshe himself revealed were made by the National Intelligence Agency (NIA).
Mpshe covered himself by stating that the NIA had obtained these recordings legally, and had declassified them. Remember, however, that the NPA found out about these recordings not from the NIA, but from Zuma’s legal team.
Mpshe baldly states that “the NPA decided that it would listen to the recordings ... despite the fact that it was not clear whether [they] had been intercepted legally or were legally in the possession of the defence”.
Mpshe is an officer of the court. He knows, as does all his team, that even if the recordings were intercepted legally, there is no possible way that they could be legally in Zuma’s possession.
It is against the law for any private citizen to be in possession of state intelligence, and it is against the law for any employee of the state to pass such intelligence on to a private citizen. Such offences are so serious that they carry a fine of up to R2-million or 10 years’ imprisonment.
Regardless of whether Mpshe presented enough evidence to warrant dropping the case against Zuma, the entire edifice of his argument is built on the illegal possession of stolen goods. And these are not just any goods: these are the recordings of South African citizens’ private conversations.
It is cold comfort that the NPA has post facto called on the inspector general of intelligence to mount an investigation into this. Given where the loyalty of the intelligence services obviously lies, can we really trust that this investigation will reveal how Zuma got the tapes, and why the NIA did not notify the NPA or the police directly once it overheard Ngcuka and McCarthy’s conspiracy?
Given their special licence to violate rights in the name of state security, the intelligence services, above all, should be above suspicion of partisanship. How can we sleep easily knowing what has insouciantly been released into the public domain this week?
And given the covert nature of the evidence on which Mpshe built his case—coupled with the decision not to test it in a court of law—how can we even be sure that we have been told the truth about all that was on those tapes? Such is the obscurity that inevitably descends over the rule of law once state security organs become implicated in political turf wars.
Certainly, Zuma has provided compelling evidence of a conspiracy against him, and all those implicated should be held to account, up to and including Thabo Mbeki.
But the question remains: has he set a thief to catch a thief? Has he, too, abused the organs of state by bargaining for his freedom with the chip of illicitly procured intelligence—and who knows what else, since his representations remain classified?
Zuma believes, passionately, that he is innocent and that he is the victim of a conspiracy. But he is entirely incorrect to state, as he did in Tuesday’s press conference, that “there was never a case against me” and that “the cloud” hovering over him is the figment of the media’s imagination; a function of the conspiracy. On the contrary, Mpshe made it quite clear that there is a case against him, and that nothing in Zuma’s representations to the NPA has changed this.
Why, if Zuma’s sense of justice was so (rightly) offended by Ngcuka’s “prima facie but unwinnable” argument in 2001, was he not similarly offended by Mpshe’s remix of the same message this week?
One answer, of course, is that while Ngcuka was trying to subvert the rule of law, Mpshe’s intention is to restore it. But another possibility is more discomforting. Back then, Zuma’s career and freedom were at stake, as was the future of the ANC. Now, it does not matter whether there is an “unwinnable prima facie case” against him or not; whether anyone thinks there is a “cloud” hovering over him or not.
He is the president of the ANC, and will soon be the president of the country, and he will not stand trial. He can look at a cloud and say it’s not there. Such is the prerogative of “the Big Man”, of “the Number One”, in 2009 as in 2001. Jacob Zuma is the new Thabo Mbeki.
Mark Gevisser is Writer-in-Residence, University of Pretoria. The abridged and updated edition of his book, Thabo Mbeki: The Dream Deferred, is now available
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