Zuma used ‘Tricky Dick’ argument

2014-10-13 00:00

PRESIDENT Jacob Zuma used a legal principle from the trial of the dishonoured United States president Richard Nixon to argue a serving president cannot be prosecuted.

This is the argument contained in an internal document of the National Prosecution Authority (NPA), which sister paper Beeld has.

The document comprises an internal analysis of Zuma’s representations to the NPA to motivate why the authority should drop charges against him.

The documents were compiled by advocate Billy Downer for the team of prosecutors that would have been involved in Zuma’s trial.

The reference to Zuma’s representations, drawn up by his attorney Michael Hulley, states one of his defences against prosecution would be that he would soon be president and there would be a constitutional crisis and adverse effects if a president could be prosecuted.

Zuma was at that stage president of the ANC. The national election was less than two months away.

The NPA document refers to page 78 of Zuma’s representation, where the U.S. vs Nixon is quoted on whether the president could claim “absolute, unqualified presidential privilege of immunity” against a subpoena to hand over the Watergate tapes.

The document refers to the U.S. Appeal Court, in which Nixon asserted that he was immune from the subpoena claiming “executive privilege”, which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest.

The U.S. Appeal Court considered the argument but did not grant Nixon immunity, ordering instead that he must release the tapes. “Tricky Dick”, as Nixon was known, resigned on August 9, 1974, before he could face impeachment and removal from office. He died in 1994 at the age of 81.

Hulley argued if Zuma were to be prosecuted after he became president, it would have had a negative effect on the government, the economy, the judiciary and general peace.

In his memorandum to Mokotedi Mpshe, former head of the NPA, Downer, however, pointed out that Zuma was not president yet and if he was elected, it would be with the full knowledge by himself, the ANC and the voters that their president faced serious criminal charges, which could have an equally negative impact on South Africa.

Downer said if the ANC argued the approach was against the will of the majority, the answer was simple — the NPA does not serve the interests of the majority, but the principles of the Constitution.

Zuma’s spokesperson Mac Maharaj did not want to comment before he has consulted with Zuma’s lawyers.

Using the access to information act, Media24 last week gained access to several documents in connection with the DA’s court application on Mpshe’s decision to drop all charges against Zuma.

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