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As in life, political events have a way of conniving with each other as if by design—and can result in political foes singing the same tune. But such coincidences also help us to learn the lesson that any unity of political forces should be questioned and that, as political actors, we should always be aware of the motives of those with whom we suddenly agree.
Almost three years after former acting national director of public prosecutions Mokotedi Mpshe dropped charges against President Jacob Zuma, the spokesperson of the ANC Youth League, Floyd Shivambu, called for the reinstatement of the charges in the Mail & Guardian (“Have your day in court, President Zuma”, March 30).
In the piece, Shivambu refers to these accusations as the “elephant in the room” in the build-up to the ANC’s elective conference in Mangaung in December.
He repeats what many of those who left the ANC to form the Congress of the People (Cope) state as a matter of fact—that there is a prima facie case against the president, which he should answer.
Shivambu further declares that “those who were responsible for manipulating processes in the National Prosecuting Authority [NPA] have long left” and that Zuma is now the president and, therefore, cannot argue there is a conspiracy against him.
Shivambu significantly waters down the reasons advanced by Mpshe, who relied on recorded conversations between Ngcuka and McCarthy, and presents the evidence as mere “gossip” related to when Zuma should be charged.
Before turning to the merits of the case, it is proper to ask whether Shivambu and his cohorts in the league would hold the views expressed in the M&G article if they had not been charged by the ANC for misconduct. It is also proper to ask whether, if Zuma did not enjoy the support of the majority in the lead-up to the Mangaung conference, they would be resorting to the same failed strategy of the prosecuting authority and some in the ANC who want to reinstate the charges.
What has changed now, three years later, from the Shivambu who wanted to “kill for Zuma” to a Shivambu who now wants Zuma charged? Does it have to do with the dried-up well of Shivambu and company’s political fortunes? It is an integrity question for the M&G and other media, which will presumably be bombarded by similar articles from the desperate fringe that is the discredited leaders of the league.
It is one thing to hear these “Charge him!” entreaties from the Democratic Alliance (DA), Cope and others who have clear anti-ANC motives, but to hear this, now, from some of Zuma’s most ardent former defenders just strains credulity.
Even by the largest stretch of the imagination, it is impossible to believe that Shivambu and his ilk have any in-principle interest in the rule of law or seeing justice served. Shivambu et al are just being opportunists, relying on another opportunistic process, as led by the DA in the Supreme Court of Appeal.
Let us take the issues Shivambu raises in turn. The declaration in 2003 by Ngcuka that there was a prima facie case against Zuma—issued on the instructions of his former boss, Penuell Maduna, and his political masters—was never put to the test.
Zuma challenged this declaration through the public protector, who found that the statement constituted an abuse of state institutions to settle political scores.
Those of us genuinely concerned with justice and protecting state institutions from misuse should not forget that it was Ngcuka’s performance in that now-infamous media briefing (and other, more secret, briefings) that marked the beginning of a flagrant abuse of state power against political opponents.
Although Zuma’s former financial adviser, Schabir Shaik, went on to be tried for corruption and was found guilty in a court of law, this has never been the basis for a trial against Zuma—or a basis for predetermining his guilt or innocence.
Of the three charges on which Shaik was convicted, two related to the conduct of his business affairs in his private company. The last related to his supposed attempts to secure a bribe “for Zuma” from a third party and there was no evidence led to prove that Zuma sanctioned or even knew of his actions.
In fact, just about the only thread that was supposed to “link” Zuma to the Shaik judgment was disavowed by Judge Hilary Squires in 2006 when he dismissed as false statements attributed to him that there was a “generally corrupt relationship” between Zuma and Shaik—a term even the Supreme Court of Appeal and President Thabo Mbeki used without having read the Judge Hillary Squires judgment.
By the time Mpshe made his decision in 2009, the investigations into allegations against Zuma of arms deal corruption had gone on for more than eight years. Over that time various courts had ruled on both the processes and the merits of the case. Judge Herbert Msimang and Judge Chris Nicholson sent the prosecuting authority packing because of the procedural and evidentiary weaknesses in its case.
We all (including Shivambu and friends) shouted outside the court in defence of the very same principles that he now wants us to abandon—that justice delayed is justice denied, that individuals are presumed innocent until it is proven otherwise, not to mention that there should be procedurally fair conduct of investigations and trials against individuals.
Our mass action at the time was not to put the judiciary or the prosecuting authority under duress, but to express our anger against the manipulation of the entire judicial administration to settle political scores in the ANC. We were not against the judges, but focused on the political lieutenants who were involved in these skirmishes, just like Shivambu et al, to use the judiciary against Zuma and taint his image before the elective conference of the ANC in Polokwane.
Furthermore, to suggest that Zuma should be advised not to appeal against the judgment of the appeal court is to compromise his fight against injustice. There is no moral or ethical law that prohibits anyone, including Zuma, from exhausting all the required legal processes to clear their names or protect themselves against malicious prosecution.
The arguments by Mpshe and, indeed, the ones presented by Zuma’s legal team to the appeal court were that the entire investigative process was a fraud and the abuse extended to far more than the manipulation of the timing of potential fresh charges ahead of Polokwane. Mpshe quoted extensively from case law which judgments were passed against the prosecution of individuals when the process itself was regarded as fraudulent.
To argue now that Ngcuka, McCarthy and others are no longer in the NPA and therefore a fair trial can be conducted just will not cut it. It sounds desperate. It sounds like the argument of someone who is ill-informed about the importance of fair administrative action as guaranteed in our Constitution and legislation.
Lastly, let me turn to the arms deal, the originator of much of the stink of corruption that has fallen over our country in the past decade and the supposed basis of the anti-Zuma rumour-mongering to which Shivambu is now lending his somewhat small name.
Zuma has recently appointed a judicial commission of inquiry to investigate all wrongdoing related to the arms deal. The commission’s terms of reference make it clear that it is a genuine process set up to get to the bottom of the matter and find any and all wrongdoers.
The commission has full powers of investigation and a wide remit; it will have an independent judicial officer who has been given all possible resources and the time to conduct a thoroughgoing process.
These are the actions of a president who is confident of his innocence and who is, moreover, concerned that those who are guilty and have been protected for too long by the Ngcuka-initiated wild goose chase should finally face the music.
In a desperate attempt to convince us that we should disregard Zuma’s actions on the arms deal commission of inquiry, Shivambu rehashes a series of well-worn anti-Zuma scare tactics: Zuma may change the Constitution to avoid being tried, or he may manipulate state institutions to be cleared, or he sees himself as above the law.
No neutral person who has observed Zuma’s conduct in relation to this 12-year-old saga would believe this hogwash.
Buti Manamela is national secretary of the Young Communist League of South Africa and an ANC MP
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