Zuma to turn 204?

In light of the Mail & Guardian’s article “ANC’s plan to save Zuma” I’d like to do a short recap of my reading on the ANC president Jacob Zuma’s legal situation and then a brief analysis of what this latest news means. It is important to read the M & G article before going through mine if you are to understand the latter in context.

As most of you will know the charges against Zuma were brought a few days after the conclusion of the ANC’s national conference at Polokwane. This was late in 2007 and resulted in a number of appearances by Zuma in the Pietermaritzburg High Court, in the ordinary course of the build up to any criminal trial, climaxing with the application brought by his counsel in terms of Section 179(5) (d) of the Constitution. The issue before Judge Nicholson being whether the NDPP, in reviewing a decision to prosecute, has to take representations from the accused before charging him.

Judge Nicholson granted the application, which had the effect of removing the charges (simplistic – for detail go to my previous articles). The decision has now been reversed by the Supreme Court of Appeals, which effectively reinstates them. In the ordinary course the parties, as things stand now, would agree a date to appear in the Pietermaritzburg High Court in order to arrange a trial date.

However, the attorneys for Zuma have indicated that they wish to appeal against the decision of the SCA to the Constitutional Court. Subject to their being granted leave to appeal they would be entitled to do so. This is not on the merits of the case merely in respect of the application in terms of Section 179(5) (d) of the Constitution. If that appeal is successful the NPA could not proceed with the charges until they have followed the procedures envisaged by Section 179(5) (d).

In other words, even if Zuma’s appeal to the Constitutional Court were successful, it is not the end of the road for the NPA, just as it would not have been even if they had lost the appeal in the SCA – they are always capable of curing the defect in their procedure; if that is what the courts decide that failing to allow Zuma the opportunity to make representations is.

In other words, lose in the Constitutional Court and the NPA is back to square one in charging Zuma, win it, or leave to appeal is denied, they move back to Pietermaritzburg and arrange a trial date. (Subject to no legal or political solution being found)

Over the last few days a few items of interest have arisen:

• Nicholson will no longer be the trial judge.
• Zuma has confirmed that he will seek a legal and not a political solution.
• Confirmation from the ANC that they would not use a 2/3rds majority to amend the
Constitution to prevent the charging of a sitting president.
• A plea bargain is not up for consideration.

If we factor in all of the above together with the decision to make representations to the NPA then things are taking an interesting twist:

“The ANC and its president Jacob Zuma are expected to spill the beans about other corruption in the arms deal when they make representations to the National Prosecuting Authority in the weeks ahead on why the charges against Zuma should be dropped.

“The Mail & Guardian has established that the ANC intends to show the NPA that Zuma is small fry in the arms deal saga and that it is in possession of much more damaging evidence, including documentation that allegedly implicates former president Thabo Mbeki and Cope president Mosiuoa Lekota in wrongdoing.

“High-profile legal teams hired by Zuma and the ANC also plan to:

* ‘Prove, to the NPA that Zuma had no criminal intent when he accepted gifts and money from fraud convict Schabir Shaik and can therefore not be convicted of corruption; and
* Argue that persisting with Zuma’s prosecution is not in the public interest.” (Mail &
Guardian);

The only logical conclusion that I can draw from all of this is that Zuma is seeking indemnity from prosecution, probably in terms of section 204 of the Criminal Procedures Act (51 of 1977 as amended), which entails giving evidence against all the other players in the arms deal in exchange for a walk from personal prosecution. I can’t see any other way of the NPA simply dropping the charges.

Up to now I have called for a political solution to the Zuma issue and an overall enquiry on the arms deal. The former to reduce the political hostility within the country and avoid the damage it is doing to our criminal justice system and judiciary, and the latter to finally rid the ANC and the country of this bugbear, which has occasioned so much damage.

What we are witnessing now is not an arms deal inquiry on a level playing field, the offenders being charged, pardoned or cleared after the necessary investigation and hearing of the evidence, but rather Zuma selling out all his former comrades in order to extricate himself from his own prosecution. In other words, the rest will be charged based upon inter alia the evidence he produces, he is indemnified against prosecution and becomes president of South Africa regardless of innocence or guilt.

If the approach is to apply for a “204” on those terms then I have a major problem:

To make it simple – If the ANC wanted to come clean on this issue then all they had to do was convene the arms deal inquiry as repeatedly called for by politicians and leaders alike. That demonstrates an intention to start the clean up on corruption at the very top. Instead President Motlanthe ducked and dived the issue just a few short weeks ago.

Enter the SCA judgment and all of a sudden, in order to save one candidate, some of those within the camp are prepared to sell all their comrades down the river in the name of expedience? In other words, we don’t care who calls for the inquiry in the name of justice; we aren’t interested in cleaning house but, when it suits vested interests, we won’t even convene an inquiry — we’ll simply draw a road map to nail all the comrades as long as we are given a walk.

Lord Haw Haw and Benedict Arnold have got nothing on this.

If Zuma and those within the ANC who support this “initiative” are prepared to sell out all their former comrades in order to achieve power, then what price South Africa? Remember these are the people that Zuma went to hell and back with in order to liberate this country. Based upon this example, could those involved ever be relied upon to show loyalty towards anything? Seems to me they’d sell anyone or anything to get what they want.

Regardless of whether you are pro-or-anti Mbeki, you can never fault him on loyalty. One of his “failings” (I consider it a major asset) is that he stood by his people regardless of the views of others who were calling for their heads. Of course as a president he didn’t hold people accountable where he should have, but that said, if Thabo Mbeki is your friend you’ve got a mate for life. The trick is to achieve a balance of retaining friendship while ridding the country of baggage.

Surely we aren’t that far passed the struggle that people can no longer recall what these comrades did for the ANC and the people of this country.

If the ANC want to convene an arms deal inquiry, with nobody gaining advantage at the expense of others, then it is long overdue. If, however, there are those who would consider selling out all of their comrades in the name of expedience, then I am singularly unimpressed.

Think long and hard on this one ladies and gentlemen; you will have to look at yourselves in the mirror every morning.