Zuma's new legal strategy is a gamble

President Jacob Zuma
President Jacob Zuma

If there is anything that keeps President Jacob Zuma up at night it has to be the possibility of having to go to court to answer to corruption charges.

This is more serious to the president than any other matter he has had to face throughout his presidency.

It is so serious that Mr. Zuma wants to make sure that the matter is settled before the ANC’s conference in December.

The Democratic Alliance (DA) has pursued Zuma on this matter for the last eight years, since Adv Mokotedi Mpshe’s decision to drop charges against him on the basis that there had been political interference in the case.

Mpshe, then national director of public prosecutions, decided in 2007 that political interference relating to the matter were such that Zuma would not have a fair trial. The DA never bought this idea, and approached the court to review the decision to drop the charges against the president.

The DA has been able to keep alive this quarrel with Zuma for the past eight years. Just as the matter reached the second last court before finality, Zuma made a turnabout and conceded that indeed the decision by Mpshe to drop charges against him was irrational and not based on sound reasoning.

This change in strategy threw Mpshe under the proverbial bus, where victims are piling up as collaterals for Zuma’s political survival.

Mpshe’s decision paved the way for Zuma to become the president of the country. By conceding that the decision was indeed irrational Zuma actually agreed that he was incompetent and “had no clue what he was doing”, as Judge Mohamed Navsa put it to his legal representative in court last week.

Mpshe’s credibility as a lawyer is out the window. I won’t be surprised if he faces further consequences from the legal fraternity out of this. His colleagues are not the most forgiving. He should ask one Adv Nomcobo Jiba who is also facing the music for allegations of misusing the law to defend the indefensible.

That’s another case altogether involving someone thrown under the bus by Zuma. The question now is who is next on the list?

Evidence points to Shaun Abrahams, the current national director of public prosecutions. Zuma’s decision to abandon the court route as a way to avoid having to answer to the corruption charges defers the decision to Abrahams. It was reported over the weekend that Zuma intends to make fresh and better representations to the NPA to dissuade it from prosecuting him.

Again, the DA will not go along with any decision by the NPA on this matter unless it is a decision to prosecute Zuma. This means that if the NPA decides not to go ahead with prosecution, we are back to square one: The DA will approach the court for review of the decision and a lengthy court process will follow, unless the court that heard the case last week adopts a strategy to cut short Zuma’s last lifelines on this matter.

The discretion to prosecute still lies with the NPA, but it cannot exercise this discretion arbitrarily. It has to apply sound reasoning and this can be tested in court, as is the case now.

The NPA’s bona fide in this case is also a point of contention. It went along with Zuma’s defense of Mpshe’s irrational decision, which raises the question as to whether it can be trusted to make an impartial decision on this matter.

The court cannot completely take away the power or discretion of the NPA regarding whether to prosecute. It can, however, craft a judgement that weakens the NPA and exposes how the prosecution authority has allowed for the misuse of its discretion.

Mr. Zuma has exhausted the lifeline of making representations to the NPA. His new legal strategy will not fly. What it can do, however, is buy him time to allow for coherence within the ANC so that the party can defend him.

Tensions and divisions running high within the ANC, and uncertainty as to whether Zuma will secure a successor in December, makes it urgent for the president to try to buy more time on this matter and ensure that the court does not finalise it soon.

For Zuma, it’s all about delaying the matter without breaking the law.  

- Ralph Mathekga is a Fellow at the SARChI Chair: African Diplomacy and Foreign Policy at the University of Johannesburg and author of When Zuma Goes. 

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