Better a Bad Settlement than a Good Case for Jacob Zuma
For security reasons, one is never supposed to ask or tell where Jacob Zuma is, but it's reliably understood that the ANC president is spending this weekend at Nkandla.
Like many others, Msholozi (his praise name) has been stricken recently with flu and presumably he returned for a little rest at what the national prosecuting authority (NPA) likes to refer to as his "traditional homestead" in rural KwaZulu-Natal.
One reason he does need a little private time is to ponder his options - "the way going forward", as business people like to say - if he wants to be sworn in as the third president of South Africa next year.
One of the ironies inherent in his situation is that, to a large extent, Zuma is no longer his own person (if he ever was). More so than before, he might not be able to "call" his options as he chooses.
For now, more than ever, he is the property, so to speak, of the ANC and of his allies in Cosatu and the communist party. They might jointly or separately take actions without Zuma knowing about them - if only because it would be better for him to be able to say "they are the will of the people; don't blame me" - and without Zuma being able to control them.
On Friday there were demonstrations by ANC and SACP members at KwaZulu-Natal police stations calling for the charges of racketeering and corruption against Zuma to be dropped.
The volume of these is likely is grow as we draw closer to September 12 when Judge Chris Nicholson makes a decision in the Pietermaritzburg high court on Zuma's latest court application: to have the national director of public prosecutions' decision to prosecute him declared invalid.
And if Judge Nicholson finds against Zuma, or even if he finds in favour of Zuma, or even if he finds some middle path (that Zuma indeed had a right to make "representations" about the case against him and that the NPA must now listen to these representations), Zuma has another matter pending before Nicholson.
This is an application for the prosecution against him to be "permanently stayed" - kicked into touch forever - the founding papers for which must be delivered by September 30.
Of course no one except Zuma and his legal team knows what will be in those papers. But it is reliably understood that they are going to contain some proverbial bombshells not unrelated to a certain arms deal and to some well-known people. What this means, at the very least, is that the action on the street is likely to become even louder and more belligerent.
And, besides what is happening in the public arena, Zuma is caught in the legal machine that is rumbling inexorably onwards.
Blade Nzimande, general-secretary of the SACP, or Gwede Mantashe, the ANC secretary-general, can, and do, say what they like and the ANC faithful can demonstrate outside police stations until the cows come home at Nkandla. But none of this is likely to cut the mustard for Judge Nicholson or any other judge.
But it is likely to have, and clearly has already, had an effect, as it is supposed to have had, on that amorphous creature, the public - and, as it turns out, "public interest" might prove to be Zuma's strongest ally on the road to the Union Buildings.
What then are Zuma's options?
His first option is to continue fighting it out in the courts, to which he is committed anyway. Although the NPA had it made an order of court that it wants Zuma's main trial to happen in April, when the national elections will take place, it is unlikely the trial will happen so quickly.
There are two matters outstanding, Zuma's application for his prosecution to be declared invalid and his permanent stay application and, whatever the outcome of these matters, one of the sides is likely to appeal. In other words, it seems clear the NPA put the April date formally on record, not because it really believes the trial will happen in April, but to show that the state is not delaying matters.
And if the trial takes place at the end of next year, or beginning of 2010, Zuma and the ANC will have time to pass legislation that a sitting president may not be prosecuted.
Besides, Judge Nicholson might find in Zuma's favour in either of the two matters. After all, no one expected Judge Herbert Msimang to strike Zuma's trial off the roll in September 2006.
A second option that has been mooted is that amnesty could be given to those who broke the law during the government's arms deal if they spill the beans. Amnesty suggestions have been made behind the scenes and, although nothing has been signed or officially announced, it seems clear this possibility has been, and is being, considered by the government.
The difficulty with this idea in general is that, although there has been a great deal of billowing smoke about arms deal corruption, no one seems to have found the fire. Tony Yengeni, former ANC parliamentary whip, was convicted for receiving a fat discount on a motor vehicle *1 and Schabir Shaik for trying to get a bribe for Zuma from Thint *2, the French arms dealer and Zuma's co-accused.
Other than that there has been nothing but innuendo, allegation and rumour *3*4. What if a TRC-style amnesty board is appointed, but no one, except Yengeni and Shaik, show up to ask for amnesty?
More specifically, as far as Zuma is concerned, even though the indictment last December against him has an emphasis the Shaik charges did not have - it focuses on Zuma and Thint having worked in concert and Shaik to generate money, illegally and corruptly, for Zuma - these alleged crimes are not strictly speaking, or even loosely speaking, arms-deal ones *5.
There is no suggestion that Zuma or Thint stole any money from the state, the people, or the department of defence. The allegations are that they acted together (racketeering) to ensure that Zuma received "illegal benefits" to the tune of R4 million via Shaik's companies, by using Zuma's clout and influence to make things go the Thint/Shaik way *6.
So, for precisely what, in terms of the arms deal, would Zuma seek amnesty?
But there is a third option, already touched on above.
The country's prosecutorial guidelines, that must be read in conjunction with the NPA Act, are crystal clear that, provided everything else is in place, prosecutors must proceed to prosecute a case - unless "public interest demands otherwise"; depending "on the circumstances of the offender"; and also "depending on the length and expenses of (the offender's) trial."
Boiled down, this means Zuma would have a strong argument in going to the state and pointing out that, whereas the state has claimed it is prosecuting him in the public interest, it is obvious that it is not in the public interest to do so *7.
The prosecution of Zuma is clearly driving the country into conflict - look at the people outside police stations - and who, after all, represents the public interest? Surely it is the country's ruling political parties, the ANC, Cosatu and the SACP?
Finally, Zuma is the elected president of the ANC and the country's president-in-waiting; the prosecution of him has been vexed by all sorts of complications and questions; his prosecution has been inordinately expensive; and his trial will be long.
But would the NPA agree not to proceed, end of story?
Or would it want to do a plea bargain?
In terms of a plea bargain, Zuma would have to acknowledge guilt and there would have to be a hard negotiation, given the seriousness of the charges (each count carries a mandatory sentence of 15 years), about imprisonment.
There is no law that says an incumbent president cannot have been successfully prosecuted - but, to retain his official position, he must have received, at minimum, a suspended jail sentence.
It's a tough one for everyone. But there is an old legal saying: better a bad settlement than a good case *8.
With acknowledgements to Jeremy Gordin and Cape Argus.