Zuma, Mpshe not off the hook yet

The decision by the acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, to drop criminal charges against Jacob Zuma, as many commentators and legal experts have said, has no legal basis whatsoever. It is a decision motivated by political considerations and appears induced under duress or undue pressure. Mpshe failed to convince the nation and prove beyond reasonable doubt that there existed legal merits for dropping criminal charges against Zuma. Worst of all, his decision is based on illegally obtained state intelligence, which, by his own admission, was only declassified on his application to the National Intelligence Agency.

Why did the National Prosecuting Authority (NPA) not investigate the circumstance under which state intelligence (so-called conspiracy tapes) ended up in the hands of civilians? Surely this is dereliction of duty because someone had broken the law. Instead of establishing whether the defence had legally obtained state intelligence, Mpshe opted to embark on a fishing expedition and made absurd claims of conspiracy against the former NDPP, Bulelani Ngcuka, and Leonard McCarthy. He said they undermined the legal process and made claims based on “evidence” that had not been validated or tested in a court of law. These two men had not even been afforded the opportunity to listen to the so-called tapes in order to make their submissions to the NPA before it could arrive at a decision on charges against Zuma.

The haste with which this decision was taken, given the fact that a trial date was set for August, raises valid suspicion of undue pressure from the ANC. McCarthy, as head of the Directorate of Special Operations (the Scorpions), had no power, under law, to bring charges against any person. The decision to lay charges against any person is by law imposed on the NDPP. On bringing charges against Zuma after the Polokwane conference, Mpshe would have done so considering the legal merits of the case before him. The issue of timing is irrelevant and to use this as the smoking gun against Ngcuka and McCarthy raises more questions than answers.

The ruling party believed that the decision to charge him was politically motivated. ANC Secretary-General Gwede Mantashe told Zuma supporters outside the Pietermaritzburg High Court that Zuma’s prosecution was “not about Jacob Zuma, it is about the ANC”. He again recently repeated that the prosecution of Zuma was an attack on the ANC, saying: “This is part of a multi-pronged strategy to attack the ANC … They [NPA] are attacking Jacob Zuma because if you hit the head, you will hit the body too … these attacks on Zuma will spread [to others in the ANC].” No resources were spared to ensure that a case against Zuma vanished … and vanish it did.

The SACP Central Committee in August 2008, of which Mantashe is the chairperson, called upon all South Africans and the relevant authorities and stakeholders to ensure that a political solution was found speedily. A discredited former judge, Willem Heath, had previously said that a “significant barrier has been removed” at the NPA, when referring to McCarthy’s resignation.

And Willie Hofmeyr, who heads the Asset Forfeiture Unit and is the NPA deputy director, subsequently got involved in the case against Zuma and formed part of the prosecution team that motivated for the charges against Zuma to be dropped. Heath had indicated previously that Hofmeyr “would approach things more objectively”. It appears there may have been the same political interference in the decision to drop the charges in the same way that the ANC alleges there was in reinstating them. Mpshe may be guilty of what he himself accuses Ngcuka and McCarthy of. An investigation needs to be conducted to establish whether his decision to drop charges was due to pressure from Luthuli House.

The questionable decision to drop these charges by the NPA has effectively subjected Zuma to a trial by the court of public opinion. It is within reason to conclude that the prosecuting authorities all over the world do not bring criminal charges against persons they suspect of being innocent. The NPA had on several occasions indicated in their submissions to the courts that they have a strong case against Zuma. A strong case suggests that credible evidence of wrongdoing exists. Zuma has consistently abused the presumption of innocence during his attempts to evade and subvert justice; a principle that can only be reserved to persons subject to the proceedings of a criminal trial. With the charges dropped neither he nor his cohorts can abuse this standing legal principle. He remains a fugitive of justice, as allegations of criminal wrongdoing have not been cleared against him in the court of law.

Judge Hilary Squires’ judgement against Schabir Shaik is a damning indictment.

Judge Squires said: “It would be flying in the face of commonsense and ordinary human nature to think that he did not realise the advantages to him of continuing to enjoy Zuma’s goodwill to an even greater extent than before 1997 and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient. If Zuma could not repay money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government contracted work, which is what Shaik was hoping to benefit from.”

Zuma has failed to prove to the nation that this mutually beneficial symbiosis never existed. He must prove to all of us, who he wants to lead as president of the country, that he never lobbied on behalf of Nkobi Holdings as detailed extensively in the charge sheet.

We hope that the terms of reference for the suggested commission of inquiry into allegations of political interference will include the investigation of interference in the affairs of the NPA in the period leading to the Mphse’s questionable decision on April 6 2009.