The numerous corruption and fraud charges former president Jacob Zuma is finally facing in court must be placed in perspective. Such a perspective is essential, I argue, to understand and appreciate the magnitude and serious implications of such charges for Zuma, the ANC and the country.
We must begin by asking: Why did the ANC delegates to its Polokwane conference in 2007 elect Zuma to become president of the party? After all, this was the same man the former president, Thabo Mbeki, fired just two years earlier, in 2005, as a result of Judge Hilary Squires’s ruling, which found a “generally corrupt relationship” between Zuma and convicted fraudster, Schabir Shaik.
This once again raised valid questions about the level of political consciousness, education and understanding of ANC delegates to the party’s elective conferences. The hard fact, which is certainly unpalatable to many people, is the existence of a herd mentality among broad swathes of ANC membership, which is precisely why the ANC is returned to power despite an abysmally poor record of “service delivery” in black townships, now in its worst crisis since 1994.
But it was deeply ironic that Zuma’s dismissal by Mbeki laid the basis for his electoral victory over Mbeki at the 2007 Polokwane elective conference. The majority of the delegates were, once again, swept away by a populist, herd-like surge at the conference, driven by the desire to avenge Zuma’s dismissal in 2005. So topsy-turvy is our politics that even Zwelinzima Vavi, expelled leader of trade-union federation Cosatu, and Julius Malema, leader of the Economic Freedom Fighters, lined up to fervently support Zuma.
Vavi said that Zuma’s rise to power was an “unstoppable tsunami” and Malema said the youth of the ANC will “kill for Zuma”. In electing Zuma as ANC president, the delegates to the Polokwane conference chose to ignore both the Squires’ judgment and the subsequent decision by Mbeki to fire Zuma.
In an interview I conducted with Mbeki for a biography of former president Kgalema Motlanthe he stated unequivocally that he had no regrets about his dismissal of Zuma and that, if he had to live his life over again, he would take the same decision if he were faced with a similar judgment. This, I insist, is a profoundly important matter people must reflect on. After all, Zuma was not only Mbeki’s deputy — they were very close during the exile years.
However, while the ANC is at war with Zuma now, the party ignored the many serious corruption and fraud allegations against him regarding his dealings with Shaik and the arms deal when they campaigned for him at the Polokwane conference. And when the Nkandla scandal broke, they again ran to his defence, even when there was strong evidence of presidential abuse in former public protector Thuli Madonsela’s Nkandla report.
So, when many members of the top leadership of the party appear keen that justice must be served as Zuma faces the many charges against him today, they seem to forget this history. But they do so also to deflect attention from the very serious woes the ANC and several of its senior officials face now, the latest being the damning allegations against Health Minister Zweli Mkhize.
However, when we turn to the current charges Zuma is facing regarding the arms deal, it seems that finally, after two decades of constant denials and evasions, he will have to answer not only the many serious allegations of corruption and fraud, but also account for his role in the widespread corruption the beleaguered and crisis-ridden state-owned-enterprises were involved in while he was president, primarily through his strong links to the notorious Gupta family.
But I argue there is nothing more interesting and intriguing than corruption and fraud charges Zuma faces around the arms deal, which is precisely why he has fought tooth and nail to get Cape Town state prosecutor Billy Downer recused from his trial. Nobody knows the charges against Zuma over all the years better than Downer. He has arguably built much of his career around this case.
The paper Downer presented to the world’s leading jurists’ conference, the British-based Middle Temple, in 2010, is critical reading, but it has hardly featured in our media. It was when I interviewed Mbeki that I first learned of this paper, The Rule of Law and Prosecutions: To Prosecute or Not to Prosecute, A South African Perspective. In it, Downer argued convincingly why the decision by then acting director of the National Prosecuting Authority, Mokotedi Mpshe, to withdraw the corruption and fraud charges against Zuma just before the 2009 elections was legally untenable, mistaken and completely against the firm advice of the line prosecutors in the case.
Instead of letting a court decide the matter, particularly because there was much strong evidence, Mpshe withdrew charges largely because these were brought against Zuma a week or so after he won the 2007 Polokwane ANC presidential election and apparently because of the huge pressure he was under from the party behind the scenes. Instead of focusing on the merits of the case, Mpshe let the timing of the charges dictate his decision.
Here lies the origins of Zuma’s distinct disdain for Downer and desire that he be recused from his trial.
Drawing on legal arguments Wim Trengove SC presented in an address at the University of Cape Town shortly after Mpshe’s decision to withdraw charges in December 2007, Downer extended a critique of the very questionable and, in fact, spurious basis on which Mpshe made the decision. What Trengove argued on legal grounds was that it was certainly not for a lack of evidence that Mpshe withdrew the charges, but largely because of their timing. He robustly argued against leaders who escaped conviction for serious crimes, even when credible evidence existed, because of the abuse of power high office often allows.
So compelling were the Downer’s arguments that when I interviewed then Democratic Alliance leader, Helen Zille (also for the Motlanthe biography) she said that the party were aware of the Downer paper and that, if it managed to get Zuma to court,the party would lean on it because it was so compelling. Now, after many years of protracted evasion Zuma is finally in court.
However, it would be a gross mistake and fatally misleading even to imply that the huge crisis in the ANC now is attributable to Zuma’s string of fraud and corruption charges. No, he is only the more prominent case in a growing leadership crisis within the party. Many leading figures and officials in the ANC, at all levels of government, including several ministers, have been implicated over the past few years in various allegations of corruption, nepotism and wrongdoing.