Ralph Mathekga

Zuma's state capture argument misses the wood for the trees

2019-07-16 08:58
Former president Jacob Zuma (Gallo Images)

Former president Jacob Zuma (Gallo Images)

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Jacob Zuma says that we have no discernible definition of state capture, but this is exactly what the Zondo commission is trying to establish, writes Ralph Mathekga.

After former president Jacob Zuma's appearance at the Zondo commission, there are a few issues that need to be clarified about the nature of the inquiry underway.

Whether or not it was intended, Zuma's appearance raises some conceptual matters that require attention, and I believe the commission will address those issues in the final report.  

Zuma took issue with the very idea of "state capture", which he says is conceptually flawed. He maintains that the focus of the commission should be on corruption instead of an impossible idea of state capture. According to Zuma, for state capture to take place there ought to be a capture of the executive, the legislature and the judiciary.

Zuma has done his homework. State capture would entail influencing all these branches of government since they constitute the state. In our case as a country, it can be said that the legislature and the executive arms of the state experienced some level of sinister infiltration. The same cannot be said about their judiciary.

The judiciary in South Africa was the last line of defence against the consolidation of state capture. Had the judiciary not held strong, it was clearly in line for takeover and capture. It staged a successful self-preservation manoeuvre against attempted capture. Despite attacks by some prominent politicians, the judges in the courts stood their ground in dealing with Zuma's efforts to derail the formation of the inquiry.

Even before former Public Protector Thuli Madonsela recommended that Zuma institute a commission of inquiry into state capture, his ability to act in the public interest was consistently questioned in the courts as his executive decisions were showing glaring problems. One recalls here Zuma's decision in relation to the respective heads of the National Prosecuting Authority (NPA) where on three occasions the courts said he got it wrong.

The courts found that his appointment of the discredited Menzi Simelane was "irrational". That was followed by more findings in relation to the dismissal of Mxolisi Nxasana and the subsequent appointment Shaun Abrahams as head of the NPA. In relation to this matter, Zuma's decision making ability was found to be inadequate.

I do not have sufficient space to list all the cases in which the courts had to reflect on the soundness of Zuma's decisions. The courts were not enablers of state capture. Both Parliament and the executive share some degree of blame when it comes to enabling state capture, or at least in failing to stop attempted capture. 

The fact that the judiciary was not captured was brought up by Zuma to conclude that the inquiry into state capture is premature. The former president would want us to wait for the full capture of all arms of government including the judiciary before we can institute an inquiry into the matter. This is akin to finding people committing crime and then waiting for them to finish the evil deeds so that what they are doing has all the necessary elements of a crime for a better prosecution.

According to Zuma, we need all elements of state capture to be in place before we begin an inquiry into it.

No such thing as state capture in law

What also emboldens Zuma in challenging the idea of state capture is the fact that South Africa's criminal law code does not define state capture as a crime. Our laws do not define state capture. This brings me to the difficult issue of characterising crime or criminal conduct.

For example, it is generally accepted that a serial killer is someone who kills three or more people over a period for some phycological purpose. The reason for killing is very important in determining if one is a serial killer.

The question is when does the existence of grand corruption merit an investigation into state capture. Zuma is willing to concede the existence of grand corruption, which he wishes the inquiry to focus on. He is not willing to accept that where grand corruption exists, the end goal might be to capture the state. Therefore, he is unwilling to entertain the idea that an investigation into grand corruption can identify state capture as the goal of multiple incidents of corruption.

If people attempted state capture but they were incompetent to fully capture all organs of state that does not mean that an inquiry into state capture is an investigation of an impossible idea. Attempting to capture the state is certainly unacceptable, even if the project does not fully succeed.

As a society, we cannot ignore an incident of attempted murder simply because murder was not successful. We investigate attempted murder to ensure that we can prevent murder from taking place in the future.

If the commission concludes that there has not been state capture because those who tried were too bad at it, that inquiry would not have been a waste of time. But Zuma seems to know for a fact even before the commission completes its work that there has not been state capture. Yes, there might not have been total state capture; however, we need to establish that as a fact through the inquiry underway.

Zuma also says that we have no discernible definition of state capture. I am convinced the commission will address this and explain at what point corruption becomes state capture. The commission might conclude that there has been state capture orchestrated by Zuma and his associates. It might say there has not been state capture, but only incidents of grand scale corruption by a few or many. The assumption that there has been state capture can easily be confirmed or dismissed by the commission based on the evidence presented. Zuma should rest assured on this one. Evidence should be rigorous and clear.   

The main problem with our former president is that he prefers to use abstract, vague statements to dismiss all allegations of wrong doing against him, whilst deliberately refusing to respond to substantive questions about specific incidents including meeting encounters and discussions he is alleged to have had.

It is not Zuma's general remarks that are going to assist the commission in determining the truth, but his honest responses to specific incidents, encounters and decisions that directly involve him. At the end, it is not his worldview that counts, but rather the motives behind his specific decisions.  

- Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa's Turn.

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Read more on:    jacob zuma  |  state capture inquiry  |  corruption
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