By fighting every procedural detail of every case in every forum, President Jacob Zuma has fended off challenges to his liberty, finances and political prospects for more than a decade. Corruption charges have been in the offing since 2003, and the fact that he was bribed has been a matter of court record since 2005. Hard questions have been asked about his administration’s hobbling of corruption-fighting since 2008, and about the funding of upgrades to his Nkandla residence since 2009.
In all that time Zuma has appeared in the dock only once, when he successfully defended himself against a rape charge, and has capitulated only once, in abandoning massive (and, in retrospect it seems, purely tactical) defamation claims against various newspapers. In the same period he was voted in as president twice.
Between August 11, when investigators targeted Zuma’s architect, and this Thursday, when Zuma answered parliamentary questions, legal matters only tangentially related to one another seemed to conspire to cause Zuma a combined headache. In retrospect, those 11 days may come to be seen as the reason why Zuma changed strategy – or why his strategy failed him in the end.
If the legal strategy to date (which his lawyers have loudly denied as being one of delay) was to keep him out of jail, out of the witness box, solvent, and in office, then it succeeded.
But over the past 11 days a confluence of circumstances resurrected three of the most vexatious ghosts that haunt Zuma. And developments over those 11 days suggest that the long-successful strategy cannot hold much longer, not on all fronts simultaneously.
The timing could have been worse; had these events coincided with Zuma’s campaign to be re-elected ANC president or with the 2014 elections, their impact could have been reflected in vote tallies. Yet the timing could also have been better from Zuma’s point of view.
As things stand, the conjoining of events has painted a deeply unflattering picture of a man whose personal problems are reflected in the government he runs, and who has let his personal failings permeate the structures he is responsible for. Proximity has turned victory into defeat, and amplified criticism.
On August 18 the Special Investigating Unit (SIU) started the process of trying to recover R155-million in money it said was wasted on Nkandla from Zuma’s personal architect, Minenhle Makhanya.
Zuma’s lawyer Kemp J Kemp admitted he didn’t have a case for withholding the infamous spy tapes. (Rian Horn)
In terms of public perception, that was unfortunate for Zuma, but only a little; it brought the Nkandla scandal closer to him than it has ever been, with its official allegation of wasted millions and confirmation that Zuma’s facilitation played at least a part in putting Makhanya in charge of government money.
But that perception problem was outweighed by the fact that Zuma himself had authorised the SIU investigation in the first place.
From a financial standpoint, however, the SIU claim was a pure positive for Zuma. If the architect is held wholly and solely responsible for the wasted money, then the president surely cannot be, at least not while action against the architect drags on for what could well be years.
Should the recovery from Makhanya fail, Zuma has a ready-made legal argument for why he should not get the bill, one that can buy further delay.
That same SIU filing apparently triggered Zuma’s report to the speaker of Parliament, his first formal consideration of the various reports on Nkandla, including the most damning of all, that of the public protector. In his report to the speaker, Zuma said he had asked the minister of police – who serves entirely at the pleasure of the president – to determine what portion of the Nkandla costs should be attributed to the Zuma family.
In theory, barring successful legal challenge or intervention by Parliament, that can bolster the Nkandla financial victory. The minister of police would surely be remiss, at least in his duty to his boss, should he not find that the architect and the president cannot be given the same bill. In terms of public perception, however, that tasking of the police minister, in the context of a perfunctory response to detailed findings, did not go quite so well.
“President Zuma’s response to Parliament regarding the R200-million upgrade is yet another demonstration of his disturbingly low commitment to fighting corruption in South Africa,” said Corruption Watch – a body created by the ANC’s ally Cosatu – on Tuesday. “The government’s efforts to fight corruption are likely to be futile and ineffective for as long as it continues to disregard the findings of a crucial anti-corruption body such as the public protector and to immunise powerful citizens from the provisions of the Constitution and the law.”
Corruption Watch was referring to Zuma’s report to the speaker in broader terms, but it made the comment even as advocate Kemp J Kemp was standing before the Constitutional Court on Tuesday, arguing on behalf of Zuma that – contrary to the claims that had convened the court – the government was fulfilling its obligations to fight corruption.
The Hawks, Kemp told the court, had been established to fight corruption and were adequately protected from political interference in doing so. But the Constitutional Court justices did not seem to buy it.
“Why is there not one straightforward line to say ‘the task is to tackle corruption?’?” demanded deputy chief justice Dikgang Moseneke of Kemp, before later declaring, in reference to a specific section of legislation, that “we don’t have a dedicated corruption-fighting unit”.
The hearing was part of a war that has been raging since shortly after Zuma was first elected ANC president in 2007, with a nearly simultaneous decision from the party that the Hawks’ predecessor, the Scorpions, should be disbanded.
The party followed through on that decision with Zuma at its head, and Zuma’s first administration oversaw the creation of the new unit. It then successfully fought off challenges to the disbanding of the Scorpions, but failed to defeat businessman Hugh Glenister’s subsequent argument that the Hawks was insufficiently independent.
The Constitutional Court ordered Parliament to try, again, to come up with a decent corruption-busting model, and under close supervision by the executive, an amended law was passed.
But on Tuesday, even as Zuma was being accused of failing South Africa on corruption, the Constitutional Court was told that there were still several ways in which the Hawks could be made to back off investigations that came too close to Cabinet for comfort. And, unlike the battle for the release of the spy tapes and perhaps the reinstatement of corruption charges against Zuma, the arguments were made not by an opposition political party, but by a foundation created to honour anti-apartheid champion Helen Suzman.
Though judgment in the matter was reserved, the Constitutional Court justices not only entertained arguments, but also spun hypotheses of their own. Could the minister of police declare politicians above a certain grade immune from investigation by the Hawks? Apparently so. Would it be possible for Cabinet to paralyse the Hawks by beheading it, or by threatening to do so, if an investigation became uncomfortable? So it seems.
Kemp, on the other hand, told the court the Hawks was at least as independent as the Scorpions in almost all respects, that national security is the domain of Parliament and the executive, that bodies that include operations “clandestine and covert” need special precautions, and that there is only so much a law can do to prevent a minister (say, of police) from acting unlawfully.
Kemp and his client, though, suffered a certain credibility gap. Just four days before, in a different court, Kemp had admitted he was trying to argue for Zuma without a case. Seconds into yet another battle on whether the infamous spy tapes should be released to the Democratic Alliance, the Supreme Court of Appeal challenged Kemp: Do you have a case? Before the session was over, Kemp conceded that there was no factual basis he could cite for Zuma’s appeal against the release of the tapes.
Those tapes were central – or were presented as such – in the final decision not to press on with corruption charges against Zuma. His legal team argued they showed a conspiracy against Zuma, and prosecutors accepted that argument. Yet Zuma has fought their release tooth and nail, as he has various other steps in attempts to charge him with corruption. Kemp has consistently denied that those battles amounted to intentional delay. But what other purpose could be served by an appeal with no basis? Is this not proof of a delaying strategy?
The final finding on that can only come from the Supreme Court of Appeal, which may never have to make such a ruling if an agreement struck in court holds. Still, as Parliament finally started moves this week to consider Nkandla formally, it was in the context of the strong suggestion that the president is not above delay, in anticipation that the long-guarded spy tapes will soon be public, with the spectre of the reinstatement of corruption charges against him, and allegations that he has been responsible for untold harm in the fight against corruption.
It may not be the context Zuma would have chosen, but it is the one his legal strategy has created.