Publication: Business Day Date: 2005-11-09 Reporter: Tim Cohen Reporter:

Scorpions Tempt Zuma with Plea-bargain Offer

 

Publication 

Business Day
Date

2005-11-09

Reporter

Tim Cohen

Web Link

www.bday.co.za

 

Former deputy may get chance to vie for presidency in spite of trial

The Scorpions signalled yesterday their preparedness to entertain a plea bargain in the Jacob Zuma corruption case, which would result in a “noncustodial sentence” and conceivably open the way for the African National Congress (ANC) deputy president to become SA’s next president.

But for the plea bargain to operate, Zuma would have to satisfy requirements stipulated by the applicable legislation, which include the obligation to plead guilty to the corruption charges.

National Prosecuting Authority spokesman Makhosini Nkosi said “we cannot rule out the possibility of a plea bargain”.

In some ways, a plea bargain arrangement could resolve an enormous political headache for the ANC by helping to defuse the issue which has split the party into pro-Zuma and pro-Mbeki camps.

It would also assist the Scorpions in their broader political struggle to avoid being incorporated into the police by helping to negate criticism that the organisation was involved in a politically inspired campaign to prevent a Zuma presidency.

However, there is also some doubt about whether a plea bargain would allow Zuma to avoid a constitutional bar on becoming president. He would also have to consider the ANC’s own internal ethics codes.

The constitution stipulates that the president must be selected from members of Parliament, and that no one who is “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” is eligible to stand as an MP.

Whether this stipulation applies to a noncustodial sentence in a plea-bargain arrangement is a matter of legal debate for which there is apparently no precedent.

Once Zuma pleads guilty, his personal circumstances would then be considered ­ including his previous convictions (Zuma has none), the seriousness of the crime and the interests of community.

Nkosi said he was unable to comment on how this applied specifically in the Zuma case, but sources close to the Scorpions suggest that there was little appetite within the organisation *1 to see Zuma behind bars for 16 years, which is the minimum sentence in serious fraud cases.

It also appears unlikely that Zuma would be personally prepared to enter into a plea-bargain arrangement. None of his legal team was available last night, but it is known that Zuma was offered, and he turned down, a plea-bargain arrangement some time ago. A person close to the Zuma camp said that he had repeatedly been urged from within government and without to enter into a plea-bargain arrangement. Zuma’s response had always been that people seemed so concerned that he should not go to jail, but did not seem concerned about whether he was innocent.

Still, with Zuma being charged on broadly the same basis as Schabir Shaik, and with the emphatic guilt verdict entered in the Shaik case, the odds of escaping conviction have never seemed worse for Zuma. Consequently, Zuma's legal team would be duty bound to discuss a possible plea bargain with Zuma.

It is not known whether the Scorpions have yet formally proposed a plea-bargain arrangement to Zuma’s defence team, but there does not appear to be any rush as the final version of the indictment is likely to be presented only next March. It is also at this point that any new charges that he might face are likely to be entered.

It is also unclear whether such an arrangement would apply to the fellow accused in the Zuma case, the two corporate subsidiaries of the French arms company Thales, Thint (Pty) and Thint Holdings. It seems unlikely, however, as the enthusiasm in the Scorpions for pursuing these charges seems high, partly to combat the notion that only third-world corruptees ever seem to take the rap, while the first-world corrupters always seem to get off.

With acknowledgements to Tim Cohen and Business Day.


*1  The appetite of the NPA legally should have nothing to do with their inclination to press charges or not.
The National Prosecuting Authority Act obliges members to :

"serve impartially and exercise, carry out or perform their powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the constitution and the law".
Usually a plea bargain is considered by both parties because a conclusion can be achieved that is mutually beneficial to both the parties, e.g. The People (represented by the State) do not have a infinitely strong case on all of the charges while The Accused does not have infinite confidence of avoiding the maximum sanction.

So, they do a deal. Either The Accused pleads guilty to a lesser charge and gets a lesser sentence (win-win) or One of the The Accused gives The People some evidence to allow them to secure either the maximum charge, or more charges, against The Other Accused.

This case is a bit different. Firstly Accused No. 1 was not charged by the NPA because "the evidence was not strong enough to ensure a conviction" (quote unquote from the NDPP); now ne has been charged and so the only logic that is cogent is that the "the evidence is now strong enough to ensure a conviction". And there are as yet only two charges, both with a mandatory minimum sentence of 16 years, unless there are compelling reasons for the trial judge to give a lesser sentence.

But here are the rubs: firstly, one of the other parties has already received two sentences of 15 years each on precisely the same charges and precisely the same set of facts. The trial judge found no compelling reasons to give a lesser sentence. So far, the conduct of Accused No. 1 has not given any reason for a lesser sentence. Indeed, the usual and logical stance is that the higher up the accused is in a position of managerial, bureacratic or political athority, the harsher the sanction.

So, at present the legal mandate of the NPA does not allow this accused to be treated differently from the previous accused (now convicted).

This leaves the appetising third way :
In return, the Accused divulges, in court useable form, all that he knows about the following :