What the judge said

2008-09-16 00:00

African National Congress (ANC) president Jacob Zuma may have been let off the hook on a technicality on charges of corruption, fraud and money laundering but it would be better if he defended himself in court to lift the cloud of corruption allegations swirling around his head.

On Friday, Judge Chris Nicholson, in the Pietermaritzburg High Court, ruled that the fraud and corruption charges against Zuma were invalid because prosecutors failed to follow proper procedures. Zuma faced 16 charges of fraud, corruption and racketeering. Nicholson ruled that the National Prosecuting Authority (NPA) should have consulted Zuma — the basis of his complaint — before it pressed corruption charges against him.

Importantly, Nicholson emphasised that he was not giving a verdict on whether Zuma is innocent or guilty and said that prosecutors are free to bring charges again. The increased political pressure now likely to come from Zuma’s buoyant backers and the question marks raised concerning the prosecuting authority’s competence over this, the second procedural lapse in the case, will make it very difficult for them to press on with charges.

The Zuma legal strategy so far appears not to be focused on answering the substance of the corruption allegations, but instead looking for loopholes in the way the prosecution has been conducted. Yet, the lingering questions over Zuma’s involvement in alleged corruption, if he does not answer the allegations fully in court, will continue to paralyse the government, erode public confidence and undermine democracy.

Nicholson, rightly, heavily criticised Mbeki and his government for routinely abusing public institutions to launch vendettas against critics.

Yet this can in no way exonerate Zuma from the shady deals with dodgy arms dealers and Schabir Shaik, his former financial advisor who was convicted and jailed for 15 years.

The judge rightly also called for the national director of prosecutions to have the same independence and security of tenure as High Court judges, who can be impeached only by Parliament and not at the whim of the president, one of his ministers or a party conference.

The judge pilloried the fact that former director of public prosecutions Bulelani Ngcuka had invited the then justice minister Penuel Maduna to the press conference where he announced he had prima facie evidence against Zuma, but that the case may not succeed because of expected political opposition to it. This clearly blurred the lines between the executive and judiciary and made a mockery of the idea of a division between the executive, legislative and judiciary branches.

In fact, Nicholson strongly suggested that all three former national directors of public prosecutions — Ngcuka, Vusi Pikoli and Mokotedi Mpshe — may have committed “a serious criminal offence” punishable by 10 years in jail by allowing themselves to be influenced by justice ministers Maduna and Brigitte Mabandla.

He pointed to the National Prosecuting Authority Act which stipulates that any outside attempt at influencing a prosecutor is a criminal act.

Yet, the judge got it wrong when he labelled Ngcuka’s unwillingness to charge Zuma with Shaik as “bizarre”. Zuma is a powerful ANC politician. The strategy of the NPA then was to try to nail down Shaik, a less politically powerful figure, first and then pursue Zuma through convicting Shaik. This was a reasonable line of action — go for the lieutenant first, using evidence so obtained to topple the master — followed by prosecuting authorities all over the world.

Also, Zuma supporters ask, why Zuma and not others? Clearly, given the pervasive corruption in South Africa and the limited resources of the NPA, the best strategy is to go for key allegedly corrupt individuals in politics, business and gangs. Toppling them will serve as a warning to others that corruption won’t pay, and that the law will also soon come knocking on their door. This is one of the reasons why the NPA has gone for selected big drug barons on the Cape Flats and for prominent allegedly corrupt businessmen, in each case going for the most untouchable ones.

In South African politics, who, after Mbeki, can be more high-profile than Zuma? Nicholson said that only a commission of inquiry into the arms deal can clear the thick mist of corruption surrounding it, which “involves very senior figures in the government from the president downwards”. Furthermore, the judge observed that Zuma had threatened throughout his case to reveal damaging information about the ANC and key party leaders if he is prosecuted.

“Like a blinded Samson he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge that he will disclose if he is faced with conviction and sentence,” said the judge.

Finally, Nicholson firmly restates the unique role of the judiciary in South Africa’s constitutional democracy, not as “umpires” in court cases, but as members of a “secular priesthood that should remain apart from the taint of politics”, whose task it is to defend the Constitution and its values.

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