The high price of political solutions

It may now be of little or no concern to him, but Jacob Zuma will enter the Union Buildings with a grave uncertainty hanging over his integrity, his judgment and his fitness for high office. This is the price that he must pay for having accepted a political solution to his corruption charges.

He may not be a bad man; and his government may do good things. But the long-term impact is as simple as it is severe: how can one imagine that this country will ever again summon the will to prosecute someone in high political office? Having folded now, can its prose­cutorial authority ever recover its reputation and integrity under the shadow of a president who enters office with such unresolved doubts about his probity?

How can Zuma and his administration ever be trusted on this score?

These are the questions that will persistently undermine the Zuma administration. Acting National Prosecuting Authority (NPA) head Mokotedi Mpshe’s decision was an unlawful failure to ­balance properly the public interest in charging people in high office with the public interest in a prosecutorial process uncontaminated by political interference.

It was as poor in its argumentation as it was in its understanding of the law; had a student of mine handed in such dross he or she would have barely escaped with a low third. Moreover, it was plainly absurd to expect the public to trust the judgment of an organisation the lack of integrity of which was the reason — so we were told — the prosecution could no longer continue.

Which is why it should have been so obvious to Mpshe that the only proper course of action was to have deferred the decision to a court and/or a judicial inquiry. Such a route would have been better for public confidence in the rule of law and better, in the longer term, for Zuma.

But what really sticks in my craw is the role of Willie Hofmeyr. Was this the same Hofmeyr, now presenting himself as the “saviour of the integrity of the NPA”, who had pranced around the ANC’s national conference in Stellenbosch with Bulelani Ngcuka and Leonard McCarthy — the three of them doing a very good impersonation of an amateur dramatics audition for The Untouchables, all dark suits and shades — insisting to all and sundry, and loudly so, that Zuma would be pursued over hell and high water?

The very same Hofmeyr, apparently, who began to hold clandestine meetings, as this column first reported last year, with Moe Shaik to discuss the terms of a “political deal”? Are we really expected to believe that this very same Hofmeyr was unaware of the political contamination of the prosecution?

On the other side of the table sits the Zuma legal team. Important questions about their professional probity were raised last week by Wim Trengove SC when he addressed a seminar of the democratic governance and rights unit at the University of Cape Town, and asked why it was that they had sat on the tape recordings, of dubious provenance and profoundly uncertain probative value, for so long without reporting them to the relevant authority and had colluded with what is very likely the illegal conduct of the national intelligence service — a service, the accountability and fitness for purpose of which is under a cloud, with the NPA.

But my ire is reserved less for the Zuma attorneys and counsel than for his ad hoc advisory team, especially Willem Heath and Sipho Seepe. Are these the sort of people that the new president will rely upon in office for legal and political advice? I seriously hope not.

Heath is an opportunist of the highest order. This is the man who presented himself as the knight in shining armour who would expose the corruption within the arms deal. Now he is merely a hired gun, willing to say anything for his client.

The irony is that it was Zuma, as deputy president and leader of government business, who Thabo Mbeki got to sign off a notoriously disreputable letter to the standing committee on public accounts demanding that it retreat from its decision to include the special investigating unit that was headed by Heath.

Seepe has the temerity to try undermine Trengove’s assault on the NPA decision by accusing him of having a financial interest in the Zuma prosecution, yet continues to pass himself off as an independent analyst, with a column in a national daily newspaper, while he serves the ANC’s Zuma support team. Would he care to disclose his financial interest?

To dismiss concerns about the rule of law as those of the “chattering classes”, as Zuma’s supporters do, displays an inexplicable failure to see the connection between the strength of the rule of law, the bill of rights and the socioeconomic emancipation of the poor and working class — something that has not, at least, escaped Cosatu secretary general Zwelinzima Vavi, who, to his credit, has been quick to distance himself from attacks on the Constitutional Court.

Many of us, like Seepe, assailed Mbeki for his duplicity, his obscurantism and his determination to conflate politics and the law — ultimately to his very great cost. Mbeki presided willingly and recklessly over the contamination of the institutions of constitutional democracy but just because he did so is no good reason to proceed on that dangerous path.

Richard Calland is associate professor of public law at UCT and director of the democratic governance and rights unit. For a podcast recording of the Trengove seminar see: http://www.publiclaw.uct.ac.za/news/?id=23

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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