Publication: Mail and Guardian Issued: Date: 2008-08-26 Reporter:

The Zuma Debate: Deal!



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To get out of our political pickle as a nation, ANC president Jacob Zuma needs to be liberated from his. There are two paths to take: either he gets his day in court or there is a deal to get him off the hook. Increasingly, consensus in the ruling tripartite alliance, the private sector and parts of the intelligentsia are building towards the need for a political deal of some sort.

Moe Shaik: Point

"What I do know now, and didn't know then, is that in the long run, motive matters more with good deeds than it does with bad. When all the guilt and shame for the bad we've done have run their course, it's the good we did that can save us. But then, when salvation speaks, the secrets we kept, and the motives we concealed, creep from their shadows. They cling to us, those dark motives for our good deeds. Redemptions' climb is steepest if the good we did is soiled with secret shame." -- Gregory David Roberts, Shantaram

The prosecution of ANC president Jacob Zuma is wrong. It is being done neither in the public interest nor in the interest of justice. To a vast many South Africans the origins of this prosecution are soiled with the secret shame of the effort to prevent Zuma from assuming high office. It is strongly believed that "the rule of law" and "the fight against corruption" arguments are used as a mere context in which to pursue this motive.

In this way the fundamental basis of the rule of law is undermined. The National Prosecuting Authority (NPA) is expected and under a duty to act impartially at all times. In this parody of justice it matters not whether Zuma is innocent, it matters only that he should not assume high office. Herein resides the secret shame of those who sought to use the NPA for this end. In the words of Justice Joos Hefer: "One cannot be assured that the prosecuting authority is being used for the purpose for which it was intended." The issue at hand is not whether the rule of law should prevail but whether the abuse of the rule of law should continue.

It is said that the genesis of the criminal charges against Zuma is based on the conviction of Schabir Shaik, which in turn originates in the investigation into the arms deal. Yet those who are knowledgeable about the arms deal know that Zuma had nothing to do with this procurement. The final contracts in the arms deal were managed by the national executive and were concluded in December 1998. At that time Zuma was serving as minister of economic affairs in Kwa-Zulu-Natal; his appointment as deputy president of the republic took place in July 1999.

Shortly after the Joint Investigation Team (which included the NPA) concluded that the arms deal was free from corruption at the primary level, the NPA initiated an investigation (August 2001) into corruption arising from the deal and in which they viewed Zuma as a suspect. In this strangeness it remains the secret shame of those who knew better and chose to remain silent. They should have taken the NPA into their confidence and explained to them Zuma's non-involvement in the arms-acquisition process. It would have been the right thing to do and would have saved the country much pain and cost.

In the abuse of power the NPA was an instrument. But, in its own right, it too abused the power vested in it. This abuse of power took the form of legal persecution disguised as prosecution. From the very onset of their investigation some seven years ago, the NPA, under the leadership of the then National Director of Public Prosecutions, Bulelani Ngcuka, adopted an extremely aggressive, prejudicial and adversarial attitude towards Zuma. For example, the NPA initially concealed the fact that Zuma was being investigated. This was followed by a steady stream of information leaked to the media by elements within its ranks, linking him to acts of corruption.

Had the Zuma trial occurred in a more developed democracy, many of the prosecutors and investigators who planted prejudicial information in the media would either be imprisoned for their contempt of court or at least face disbarment for professional misconduct. Elements in the NPA abused the rule of law and, as a result, undermined the public's confidence in the NPA's integrity.

The NPA adopted the position that it was not prepared, for reasons of policy, to confirm or deny these media reports. The then minister of justice stated publicly that he did not know whether Zuma was under investigation. And yet the NPA declared in later court affidavits that they had briefed the minister of justice all along. On several occasions, via his attorneys, Zuma offered the NPA his full cooperation in their investigation. The NPA never took these offers seriously and the acrimony towards Zuma was perpetuated.

The Public Protector's report of May 2004 in respect of the complaint lodged by Zuma further highlights the acrimonious approach adopted by the NDPP and the NPA towards Zuma. Despite the Consititutional Court's recent ruling on the legality of the matter, the NPA's and Directorate of Special Operations' dramatic raids on Zuma's home and the offices of his attorneys, in the full view of the media, deepened the acrimony.

As a result, this hostility spread like a virus across the country, infecting all and sundry and causing unhappiness and division. Strong opinions are held on both sides of the divide and almost all constitutional institutions have been affected by it. In pursuit of strongly held opinions and views balance has been lost and, in the process, effective governance has stalled and the pride of the nation has suffered. The continued prosecution of Zuma will further divide the country more than it unites.

Many are asking whether the national interest requires that the interest of justice be pursued in ways other than by judicial confrontation. In the current context this is the right thing to do and this approach should be encouraged. It is being suggested that, as a way forward, serious consideration should be given to offering Zuma a plea-bargain agreement. Others have called for the granting of blanket amnesty or indemnity from prosecution. These approaches have in common the correct assertion that following through with the court case is not in the best interest of the country. In any event it would appear that the right to a fair trial has been so utterly compromised that it may now not be possible to hold a fair trial.

Yet, before we consider plea bargains, amnesties and indemnities, we need to consider whether Zuma should be prosecuted in the first place. Zuma has maintained his innocence consistently. The conduct of the NPA in relation to Zuma suggests that its interpretation of the facts, thus far, has been prejudicial to him in that it is conviction-seeking rather than truth-seeking.

The interests of justice would be better served if Zuma was provided a fair opportunity -- in an environment free of political manipulation and prejudice - to present an explanation to the NPA. The founding legislation of the NPA provides for this truth-seeking interaction and is an important instrument to assist the NPA to arrive at a decision whether to prosecute. The NPA has provided this opportunity to others and should do so for Zuma. The right to make these representations to the NPA and the review of their decision to prosecute is at the core of Zuma's legal challenge in the Pietermaritzburg High Court.

It is not the function of the NPA to wage judicial war against an accused but to assist in the administration of justice. It is clearly not its function to "win at all costs" and the administration of justice is not a game to be played. The NPA is a servant of the law and in its efforts to ensure that guilt shall not escape it must also ensure that innocence does not suffer.

Accordingly, a judicial confrontation can be avoided if there is a sufficient willingness within the NPA to treat the Zuma matter in an impartial and truth-seeking manner. In this new environment there would be no reason why Zuma would not renew his willingness to cooperate with the NPA to establish his innocence. As in previous matters, Zuma has demonstrated a remarkable capacity for reflection. A non-adversarial environment can create the conditions for all concerned to calm down and reflect on the important lessons that need to be learned from all of this. In this way we would enhance the well-being of the nation and regain our confidence in our constitutional organs of governance.

Lastly, it was correct for Schabir Shaik to assist Zuma as a comrade and as a friend. There was no wrong in this and his intention was based on human solidarity rather than on criminality. On reflection, however, it would appear that he did on occasions inappropriately advertise his association with Zuma. Herein resides his secret shame that soils his good deeds and presents, for the rest of the Shaiks, an associated regret and sorrow. In this there are lessons for others.


Article comments

I think that your argument is basically flawed.

1. Once Shabir was found guilty the NPA was in a very difficult position. To uphold its independence and the rule of law it had no option but to charge Zuma least the ANC be accused of using state organs to protect the ANC elite. So the NPA is damned if it prosecutes Zuma and damned if it does not. One should therefore not make prosecuting Zuma the NPA’s fault as they are merely the messenger. 2. To get elected to any position from high school prefect upwards a candidate must make sure that they have a basic clean record. JZ has being accused of having committed tax fraud, something which has been consistently and conveniently ‘forgotten’ in this whole saga. This is a basic crime and the mere accusation thereof would prevent him from becoming a high school prefect let alone State President. Remember to hold a job including that of public office one must be free of suspicion beyond reasonable doubt versus the criminal position of being free of suspicion beyond all doubt. That is, one can be fired from a job based on reasonable doubt but one only goes to prison if the accusation is beyond all doubt. The fact that the ANC elected such a person as their president shows that it does not have the basic values anymore of being able to elect high school prefects who are above reasonable doubt. Again this is not the NPA’s fault. 3. If JZ becomes the next State President it must be noted that he would in effect be a minority president. He only got 60% of the Polokwane vote and the ANC only represents at best 70% of the national vote, so nationally he achieved less than 50% of the vote (ie about 42%). So why should the majority of SA citizens have to ‘put up’ with the whole Zuma saga? 4. It appears that the argument is not for amnesty BUT for a dropping of all charges – so what happens to the tax charges as they are basic personal charges like shop lifting that are not linked to the arms deal or Shabir’s conviction?

Remember the onus is on the candidate to make sure that they have a clean record NOT the employer (in this case the state). So is Jacob fit beyond reasonable doubt to hold public office?

Owen Walker on August 26, 2008, 3:31 am

Zuma does not have huge support, and the communist party is not leading the country. All the hype being supported by the various press is JUST THAT - HYPE only, and being spun by what amounts to a band of gangsters trying to get their hands on the nations money. The mainstream body of the people and the youth know that Zuma does not have what it takes. South Africa is a proud nation and will not accept second or last for best.Vince York on August 26, 2008, 6:42 am This argument is all good and well ... if you are ready to accept, as the author does, that Zuma is innocent and a victim of harassment. And therein lies the flaw of this point of view - it's not a convincing motivation for a 'deal', it's an attempt to justify a preconceived opinion.

I would have thought that this lobby, holding such strong views that Zuma is being persecuted, would actually welcome his day in court - to prove the falseness of the accusations - just imagine the meteoric rise in his popularity (and hence, power) when found innocent! (and hence, deemed persecuted).

Surely, a much more desirable outcome than a presidency incapacitated and compromised by a legacy of corruption.

Ray Ives on August 26, 2008, 7:26 am

Does the M&G really expect its readers to believe that Schabir Shaik's brother can provide disinterested comment on the NPA and the Zuma trial? Anyone heard of vested interests? The allegations that Zuma cannot receive a fair trial have no basis, and are a dangerous attack on the independence of the judiciary. Capitulating to these paranoid delusions would be extremely dangerous for the future of SA as a democracy. There is something deeply troubling in the claim that the Zuma trial should be replaced with a political deal in order to avoid potential violence and political fall-out, especially as these claims are made by the very people who declare their willingness to "kill for Zuma". If they are really concerned about the political fall-out from the allegations of corruption against Zuma, why are they not calling for the most logical political solution - namely, that Zuma stand down as ANC leader? The fact that this is not considered as an option shows quite clearly that it is not the interests of the country Zuma's supporters care about, but political power. This in itself is reason not to be swayed by their demands.

It is true that the allegations about the arms deal are embarrasing, but the only way to deal with them is by court trial. Otherwise those in power will be told that corruption by the ruling elite will be tolerated because exposing it threatens the stability of the country.

Elisa Galgut on August 26, 2008, 8:13 am

I’m ver confused, please help me understand your reasoning…

Let us assume that Zuma had committed murder rather than fraud.Would you claim that he had just committed a little murder; a murder of no consequence, the victim is not central to the politics of the ANC and should be overlooked.

But Zuma, with his evasive tactics, has murdered our justice system. (… a little murder; a murder of no consequence, the victim is of no importance).

A crime is a crime is a crime no matter how it is uncovered. (or am I missing something peculiar about African ethics?)

John Bond on August 26, 2008, 8:54 am

In my opinion, Moe, you're too close to the issue to make an ubiased statement on the matter.

Finish and klaar.

Next dealer, please.

Travis Lyle on August 26, 2008, 9:32 am

Ag shame Com,

Your poor brother, having committed his life to good deeds and while trying to do the right thing (helping a friend and comrade) falls short - in just one little respect (advertising his connections) and BANG!!! he gets smacked by the full weight of a maliciously conceived prosecution which manages to convince a judge that he is a nasty, corrupt criminal deserving of a 15 year jail sentence. 15 years for name-dropping!! To add insult to this injury, the Constitutional Court judges are not impressed by the - obviously - solid argument that he is basically a good guy with great struggle credentials. What were those judges thinking, sitting up there in their ivory tower? Surely they know that we created them and they have us to thank for their plush new offices and intellectual status? You'd think they would show us some gratitude.

Like I say every day to my kids, no one has any respect for what we went through. My oldest got arrested by some over-zealous policeman for shoplifting a pencil. A bloody pencil! I told the cop that he was being bloody ridiculous. I mean, I could have brought home a thousand pencils for the kid from the stationery story at work but the cop just didn't get it.

You are so right man, every honest man and women must be nervous as all hell. My advice is think twice before name dropping. I used to get a lot of mileage mentioning that I went to university with one of the Mandela kids but all that has stopped... I'm scared out of my wits. What's a bloke to do when you can't flatter yourself to gain an edge?

Forward to the 2nd revolution and screw any institution that dares to stand in our way. This time round lets create a system where no one can 2nd guess our intentions, where we get to make the decisions and do things right the way we want, regardless of what a bunch of misguided lawyers in red bath robes think.

carl wesselink on August 26, 2008, 10:13 am

Surely people will always have their own perceptions in any democratic society.the main thing is to ensure that when we comment in such platforms we should have facts.Zuma was never found guilty of any rape or corruption or tax evasion.It's simple zuma had an accountant in the name of shabir shaick so if shaick got paid for his services which he failed to render why blame zuma?The same scorpions former leader Bulelani failed to prosecute Zuma why?If Zuma raped why was he then acquited?Please let's try to be objective people as Zuma is still a citizen of this country as such he is protected by the same constitution and laws of south africa.The NPA is simply after Zuma that is why they even sneaked into the ANC conference in limpopo.Mail and guardian thank you for revealing facts like now the NPA operates as if they are a political party as they seem not to have backbone.They are accusing one another and watch this space some day the truth against zuma will come out and some bad elements within the goverment and NPA will simply eat their humble pies..By Jacob selematsela

Jacob Selematsela on August 26, 2008, 10:42 am

Shaik main argument is that "the prosecution of ANC president Jacob Zuma is wrong. It is being done neither in the public interest nor in the interest of justice. To a vast many South Africans the origins of this prosecution are soiled with the secret shame of the effort to prevent Zuma from assuming high office." Where is the evidence for his statement? The rest of his argument is flawed because it moves from a wrong premise. Exactly why would anyone not want Zuma to ascend to Presidency? No one in the Zuma camp has never said this beyond an incrediable assertion that Zuma is closer to the poor.

That the prosecution of Zuma is based on the conviction of Shabir Shaik, and by the extension of this logic, the arms deal. Unsuprisingly, Shaik put aside his brother's convition, and only focuses on who particated in the procurement process. However, his argument fails to deal with the fact that Shabir Shaik was also not involved directly in the procurement process. The fact of the matter is that Zuma received substantial amounts of money from Shabir, for which he did not even pay tax. How is that related to preventing his ascent to the Presidency, amongst other charges?

Enough said already. Zuma must have his day in court.

Patrick MkhwanaziPatrick Mkhwanazi on August 26, 2008, 12:10 pm

I have no inclination towards Zuma. But Owen Walker's post is specious, particularly with regard to his analysis of the vote for Zuma at Polokwane. If I have to explain, well just go away! I have a deep distrust of any Shaik, which is no surprise in that I (am forced to) trust the M&G. But this article in association with Walker's drivel, acutely reminiscent of so, so much other drivel, has 'Shaiken'(weak joke from an idiot) my distrust. Our media in SA must rise to greater heights. It seems that our problems come out of the lazy (primarily white) intellect that has had the media in a grip for so long. Listen media: the proof is in the vote for Zuma: the people don't trust you!!!!!! Perhaps you must read that again. It seems also that this false intellect infects all levels up to and including the judiciary. The point is we are in this together. For those who do not know what this little cliché means, well for one to blame the other in SA is only as valid as an accusation delivered at the mirror. We have a lot of work to do. All great achievements are the bedfellows of mistakes. The only real mistake is that made when one, or a group, denies this. This latter is very close to the position taken by the white controlled media in SA.

James Edwards on August 26, 2008, 3:01 pm

However long the arguments and point scoring by both sides go on, the central challenge the Zuma affair presents will not change.

Elements in the tripartite alliance are threatening SA in order to get their way in the matter.

Compromise the rule of law because of this and there is nothing to stop it happening again and again.

Paul Whelan on August 26, 2008, 4:09 pm

Why must a man who claims he cannot wait for his day in court constantly run at shadows? Why is he always delaying the process through litigation and appeals against this and that when he knows he is not guilty? Am I missing something here?

Riman Mart on August 26, 2008, 8:02 pm

My view are as follows: 1.Based on the comments being made, most often than not, they always take a racial tone, look at the opinions being made by those who have read Mo's view. What people have accepted that Zuma is guilty. (doesn't this perpetuate the thinking, by some sectors of our society, that Nxamalala has been found guilty through public opinion?) 2. It would have been better if the Mail & Guardian were to show us different legal opinions. e.g, it would make sense, if we were to be shown why people like Mark Thatcher, Aglioti etc got deals, and what is different between their cases and Zuma. This will at least give us ordinary citizens a space to formulate our ownopinions, based on analysis given.

Truth be told, journalists are never objective (though they try), and as such there is a huge possibility that that their biasness would creep in, after all we are human beings and we are not perfect.

xolani luthuli on August 27, 2008, 11:54 am

Jacob Selematsela, the only way in which the "truth will come out" and "people will eat humble pie" as you suggest if Zuma's followers produced such "truth", or if he goes to court and defend the allegations against him to prove the so-called political conspiracies against him. Unfortunately, that is not going to happen because Zuma's followers, now there is no such "truth" and the political conspiracy is just a fignment of their imagination, hence the new strategy which is to denigrate the judges and call those who express different opinions "enemies" as they try to blackmail the country into accepting their morally flawed leader as a president of the country.

Patrick Mkhwanazi

With acknowledgements to Mail and Guardian.