Guest Column

Charge Zuma with treason

2017-07-09 00:05
President Jacob Zuma. (Pic: Karen Bleier, AFP)

President Jacob Zuma. (Pic: Karen Bleier, AFP)

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Cunningham Ngcukana

The former public protector’s damning State of Capture report, released last year, was a harbinger of things to come in 2017.

In May, the SA Council of Churches (SACC) released its own probe into corruption, titled the Unburdening Panel.

Hot on its heels came the report by the country’s academics called Betrayal of the Promise: How South Africa is Being Stolen.

The Gupta email leaks have given credence to all three reports.

The reports all find organised corruption and the wanton looting of state resources in government departments and state-owned enterprises (SOEs).

At the centre of looting are these SOEs, institutions vital to South Africa’s economic development and the proper functioning of our infrastructure.

They include power utility Eskom; logistics firm Transnet; the Passenger Rail Company of SA (Prasa); public broadcaster the SABC; national carrier SAA; arms company Denel; and our various water boards.

The reports are unequivocal in their findings: our state institutions have been hijacked for the benefit of the elite few. The academics go further and call their probe “a silent coup”.

Zuma 'the ultimate traitor'

At the centre of each report are President Jacob Zuma and Malusi Gigaba, our current finance minister, who is fingered in his former positions as minister of public enterprises and minister of home affairs.

The two are alleged to be the primary facilitators of corruption and state capture. The third player mentioned is the president’s son, Duduzane.

The lack of a well-defined and documented framework of what constitutes the country’s national security interests poses a serious problem in this regard.

It is for this reason that, one believes, former presidents Thabo Mbeki and Kgalema Motlanthe have called for ANC MPs to vote with their conscience during the vote of no confidence against Zuma, so as to refrain from calling what is happening treason and espionage led by the president, his Cabinet ministers and those on SOE boards in cahoots with foreigners who received their South African citizenship dubiously.

The assertion of our former presidents is that MPs who vote with the opposition will not be violating any ANC principles.

These MPs can probably argue in court that the duty they have to the country, together with their oath to uphold the Constitution and the laws of the Republic, supersede the ANC’s constitution. They can even lay charges of intimidation and obstruction in discharging their duties against those who want them to follow the party line.

The end of apartheid never meant that there would be no cases of treason, as the Boeremag trial proved. It also never meant that there would be no traitors bent on subverting the state’s institutions and processes.

Zuma represents the ultimate traitor for having subverted state institutions such as the SA Police Service, the Hawks, the National Prosecuting Authority (NPA) and other intelligence agencies – with the heads of such bodies having committed the dastardly act of obstruction of justice.

For treason to occur there must be intent, as well as concomitant action, to violate a country’s legal order. In other words, treason is a breach of the allegiance that a citizen owes to his country. It becomes more serious when committed by those entrusted by the Constitution, and by law, to prevent it and to prosecute those guilty of committing it. As with any crime, wrongful intent is a crucial element of treason.

The Gupta email leaks provide sufficient proof of intent on the part of Zuma, who showed dereliction of duty in his appointment of Cabinet ministers. By creating a shadow state – or, in the words of former finance minister Pravin Gordhan and his deputy, Mcebisi Jonas, “a parallel state” – Zuma has intentionally ignored the established procedures and protocols of appointing Cabinet ministers and SOE board members.

Constitution has failed to protect us 

In addition to wrongful intent, the crime of treason requires the commission of certain acts. The leaked Gupta emails provide sufficient proof of overt acts that constitute treason. They have co-conspirators who, under the doctrine of common purpose, can be criminally charged as well.

What, then, of the motion of no confidence against Zuma? There is a gaping hole in our Constitution. It fails what I call the Kader Asmal test, named after the former struggle veteran.

Asmal spoke of the law as being an instrument to protect the weak against the powerful but not an instrument to suppress the weak. The Constitution must be written to protect the country and its citizenry from the worst president.

It has failed to protect us from a president who is a traitor to his country and people. Not only is Zuma looting the country, but he is also giving away military patents to India through the Guptas and Denel.

The Constitution has no procedures for impeachment of a delinquent president like Zuma, despite the provisions of section 89 on this matter.

The Economic Freedom Fighters has taken this provision – correctly so – to the Constitutional Court. A motion of impeachment cannot take the same procedure as the motion of no confidence: a simple vote without a process that involves probing a president’s misconduct.

What is to be done?

The Gupta email leaks should spur us to take action against those elements who continue to undermine our collective intelligence.

The independent media, to whom we should be indebted for exposing corruption on this grand scale in departments such as water affairs, social development and public enterprises, as well as SOEs, has shown that the fourth estate is an important pillar of any democracy. This places an obligation on us all to defend journalists against thugs paid in crumbs by the Guptas to uphold corruption.

In addition, civil society needs to immediately set up a fund and assemble an expert team to conduct the private prosecution of Zuma and his acolytes, including the Guptas and guilty ministers, on the grounds of treason, espionage and money laundering. These acolytes must include the heads of police, of the Hawks, of the NPA and of the State Security Agency. All must be charged for defeating the ends of justice, obstructing justice and being accessories after the fact to treason.

We do not need a judicial commission of inquiry to exculpate those who have committed serious crimes against the state and the people of South Africa; we need prosecution. Zuma has a history of abusing these commissions to exonerate himself and buy time.

We should not go the commission of inquiry route as it will take time and obfuscate issues. Prasa board chairperson Popo Molefe has led the way by taking on the criminals at the Hawks for refusing to investigate corruption at the rail agency.

A private fund, set up to prosecute Zuma and his guilty cronies would signal that the outcomes of the ANC conference are not the determinants of who gets investigated and prosecuted. Civil society is.

The Save SA campaign and its constituent structures may be best placed to set up such a fund and send a clear message to traitors and law enforcement agencies gone awry.

The alternative, as inferred by the SACC report, would be too ghastly to contemplate. It warns that South Africa is on the brink of becoming a mafia state, from which there will be no return.

The right to bear arms against an immoral regime remains an option to many of us who sacrificed our youth and education in the struggle for freedom. However, this would come at a high price for the country.

Nevertheless, as former freedom fighters, we will not allow the mortgaging of our country under whatever guise. Some of us are ready and willing to liberate our people again, even from thugs and criminals like Zuma.

Ngcukana is a former deputy director-general in the presidency and a former head of Nepad’s governance, peace and security cluster. He also headed the PAC’s intelligence internally from 1985 to 1993

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Do you agree that the leaked Gupta emails and recent reports allow for the private prosecution of the president and certain ministers?

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Read more on:    gupta brothers  |  jacob zuma  |  guptaleaks  |  gupta emails  |  treason
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