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

The Zuma Debate: No Deal!



Mail and Guardian



Reporter Richard Calland

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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. Click here for the other side of the debate

Richard Calland: Counterpoint

Scorpions survivor Willie Hofmeyer was seen recently having a quiet drink in a Pretoria bar with none other than Moe Shaik, the man whom one politically astute friend of mine described recently as "the man who likes to think he knows what Zuma is thinking before Zuma has even had the thought himself". I am reliably informed that there is even a piece of paper which may well yet prove to be the basis of the deal that seals Zuma's passage to the Union Buildings, Scorpions or no Scorpions.

It is hard to escape the conclusion that this piece of paper, or whatever it in time spawns, will be a pivotal moment for South Africa's democracy. Not just because it will seal the fate of one man. Nor just because of what it will tell us about modern South Africa's attitude to the relationship between politics and the rule of law. But because of what it will tell us about South African society's willingness to put pragmatism above principle.

There are enormous risks, which should not be discounted lightly. Nelson Mandela went out of his way in his recent birthday speech in Pretoria to remind people of the fundamental importance of democratic institutions, of which the rule of law is perhaps the greatest. The implication was clear: undermining them threatens the constitutional enterprise on which this country embarked 14 years ago.

Since prim clarion calls to defend the rule of law are in themselves insufficiently persuasive in the face of the heavy politics of the moment, I have been desperately racking my brains for respectable and plausible arguments in favour of an agreement or arrangement that will permit Zuma to escape the very thing that for so long he argued he most earnestly sought, namely, his day in court. (While my brief is to make the case "against", to do so it is necessary to be clear about what is the best case "for".) But in this respect I have been found wanting.

I assume, however, that no one is simply suggesting that the criminal case be dropped (assuming, in turn, that the court does not accede to the request to strike out the prosecution). Thus, as a preliminary point, it is important to be clear about what exactly is being proposed. Is it a plea bargain? Or is it an agreement that forms some sort of wider amnesty process?

A plea bargain is justified where the prosecution takes a considered view that it is unlikely to succeed with a higher charge and that it would be wise to accept a plea of guilty for a lesser charge and, therefore, the public interest in criminal justice is served by such a bargain.

But notice the crucial point: it does not amount to a total collapse; Zuma would still need to plead guilty to something. Everything would hinge, then, on precisely what. For much of the first part of this year I assumed that a plea bargain would be reached that involved a plea of guilty to a crime sufficiently serious to be imprisonable (albeit with a suspended sentence as a part of the deal), thus preventing Zuma from becoming president.

But I have come to appreciate the extent to which political momentum has built up behind him now, to the point where, with the grand prize tantalisingly near at hand, neither he nor his most ardent supporters would accept this. Hence, a plea to a very minor offence is presumably one of the options now on the table.

What is the justification for such a deal? Where and how is the public interest served? If the argument is that Zuma's prosecution is so unfair, so tainted, that he is the victim of an egregious establishment conspiracy, then surely the best place to prove it as such is in court, through the process of tested evidence.

Unproven, the complaint of unfairness will not represent a convincing case for the deal. The wobbly basis for the plea bargain will always rankle with many, undermining public confidence in a Zuma presidency and continuing to blight his reputation.

Which brings one to the idea of a wider amnesty process. Amnesty is a subjugation of the normal rule of law. It requires, therefore, an Act of Parliament, such as the Truth and Reconciliation Act. Arguably, the amnesty element in the TRC process failed because an agreement to exchange amnesty for truth tends to be a notoriously hard one to enforce fully. Those who give the amnesty -- society at large -- tend to get the short end of the bargain. Consequently, there is a lack of "closure"; stalemate about the past leads to a stalemate about the future.

Instead of pursuing justice, South Africa may instead get stuck -- and not just with a president whose probity and fitness for public office has been so seriously questioned.

In any case what is the big-picture justification for such an extreme course? In the case of the TRC it was at least clear: it was a major element of the historic compromise that enabled a largely peaceful transition to democracy.

Nothing as remotely noble is available now. Unless one is prepared to buy into the idea that Zuma is a leader we just have to have at all costs, even at the expense of the rule of law. Whereas Mandela went to great lengths to demonstrate his personal accountability as president to the rule of law -- in one case uncomplainingly enduring several hours standing in the witness box -- the new ANC leadership appears to be saying "our president's internal election victory at Polokwane puts him above the law"; or at least that the law must bend to the will of the 60% of the delegates who voted for Zuma.

In which case, the ANC really is unrecognisable from the organisation that carried the torch of liberation into those negotiations in the early 1990s -- an organisation that was always greater than any individual, even Mandela, and to whom the "cult of personality" was anathema.

Thus, a deal that succumbs to such a cult of personality will represent a victory of fearfulness over courage. Anxious about its tenuous social consensus and unable to deal with the true sources of the lack of social cohesion head on, South Africa thus opts for what Kole Omotoso calls a "culture of timidity".

Interestingly, the proponents of the deal are not just Zuma spin doctors and apparatchiks, but business leaders and veteran commentators. It is as if some people have convinced themselves that to save the rule of law in the long run it must be sequestered to the political force majeure of the short term.

This is a profoundly weak intellectual position to support; it is as politically inane as it is legally anaemic. At the very moment when critical thinking is needed, it is being abandoned in favour of a rhetoric that is as ill-informed as it is dangerous -- as Raymond Suttner noted in a brilliant article two Sundays ago in City Press, during the course of which he posed no fewer than 16 questions about the progressive legitimacy of the Zuma "alliance".

On the rule of law there is a new spirit of pragmatism and opportunism abroad at present that is thoroughly unattractive. "Political hooliganism", as one of the country's most eminent human rights lawyers is naming it.

As a trade unionist, ANC secretary general Gwede Mantashe should know better than to undermine public confidence in the Constitutional Court. Re-reading Clive Thomson's chapter on Trade unions using the law in the 1988 book, Law and Social Practice, I am reminded of the fact that even in the most testing of times trade unions were able to use the courts to win important victories for workers.

A progressive perspective of the rule of law regards it as a crucial strand in the overall fight for justice, alongside popular struggle and mobilisation -- a combined strategy of the sort that the Treatment Action Campaign has been so persistently determined to muster -- and a site of political contestation that should not be vacated without a fight.

Threatening judges to win superficial short-term gains is a dangerous game; be careful what you wish for. The personal attacks on individual members of the Constitutional Court are outrageous; these are people of the highest integrity, who made great sacrifices themselves in the name of freedom and whose approach to crafting a progressive jurisprudence is widely admired here and internationally.

Yes, it is shameful that Irene Grootboom died in the same miserable conditions from which the Constitutional Court sought to protect her in their groundbreaking judgement in 2000. But whose fault is that? Not the court's, that is for sure. If you are looking for "counter-revolutionaries", Mantashe must look a little closer to home.

The liberal left is confounded. Weary of the neurosis and obscurantism of Mbekism and profoundly disappointed by the failure to make any serious inroads into levels of inequality, one is now faced by a belligerent bandwagon whose personality cult threatens to wholly undermine any progressive credentials it or any of its members may have.

The grotesque and opportunistic posturing over the courts is the latest and best example of this; a pragmatic deal that would "liberate JZ so as to liberate us all" would be the next and, because of the damage it could do, perhaps the last -- a choice the country may come to regret. To advance and protect the Constitution, something must be done to stabilise the politics of this second transition. But an opaque "grand deal" -- whether a plea bargain or an amnesty -- is not the answer. Not, at least, if South Africa wishes to instil a culture of accountability ahead of a culture of impunity.


Article comments

Utter nonsense! Criminals get accused, get investigated, go to trial and are cleared or convicted. Accomplices to crimes also go through the procedure. All the majority of South Africans support this, and the wishy washy limp wristed twisting and turning of the laws and procedures in the nation on technicalities is coming to an end. Zuma and his henchmen do NOT have such great support as puported. Only media hype is making out gangs of diehards who stand to gain personally by self enrichment and the little communist party, to be of any significance. NO DEAL!

Vince York on August 26, 2008, 7:02 am

While I tend to agree with your counterpoint, you did not explore the issue of the NPA just dropping the charges. Whereas amnesty or plea bargains admit to guilt either on the behalf of the ANC as an organization or on the behalf of Jacob Zuma as an individual citizen, the dropping of the charges makes the whole saga just go away.

So as no one wants to admit to something and the fact that the NPA once being given a case is obliged to prosecute said case, it makes the removal of the Scorpions from the NPA the only option. That is, without the investigation file the NPA cannot prosecute.

This is why the Scorpions are being disbanded - so that high profile charges like these just end up in file 13.

So constitutionally the NPA remains an independent body above repute but they just never receive politically sensitive cases from the police who are headed by a poltical appointment who is less obligated to be an independent body.

So our constitution looks good and so do our politicians.

Owen Walker on August 26, 2008, 3:59 am

Further to my first comment, you did not explore Jacobs innocence before the law.

While he might not be found guilty beyond all doubt and so get a criminal record from a criminal court of law, he might be guilty beyond a reasonable doubt in a civil court of law. So perhaps he does not need to serve prison time BUT is still liable for damages to the citizens of South Africa and Africa (considering the power and weight the President of the largest economy in Africa carries).

Has he not already being found guilty in civil society (the voting public) considering that he will be a minority president? (60% of 70% = 42% which makes Jacob as popular as Robert Mugabe).

Owen Walker on August 26, 2008, 7:14 am

I do enjoy Richard Calland’s “Counterpoint” and am usually enlightened by his arguments and viewpoints. However his “No Deal” contribution to the “Zuma debate” as it is now known rather left me a little disappointed and shaking my head.

Firstly, to me at least, there does seem to be a rather haphazard way in which the NPA conduct themselves: compare Tony Yengeni who, admitting guilt, was charged and jailed, albeit for a short period (and for a relatively small infringement) and Agliotti – self-confessed hitman, etc who walks free, I really hesitate to mention the race card but….

Let me state that I am not a Zuma supporter (and the thought of Zuma at all costs is a little depressing ) – nor am I a fan of the ANCYL who I consider nothing better than Bully Boys (seems to me that an organization that encourages boys to be boys until 35 is rather suspect.) - and I really dislike Umshini Wami - I and deplore people threatening judges and I don’t really see why the Scorpions should be disbanded.

But enough about me..

Back to Mr. Calland’s article: I wonder whether he forgets that South Africa had, apart from the TRC, a different, albeit, less public amnesty process which kicked off in 2003 – I refer to the Exchange Control and Income Tax amnesty, which “forgave” over 60 000 indiviuals/organisation, if figures are to be believed . It brought many into the tax net. It also netted SARS quite some funds in terms of fines, penalties etc but, more importantly, intelligence as to who, where and (I assume) how so much money left our shores and/or remained undetected.

Are politicians less venal than businessmen? I would like to think so but clearly that is naïve. Politicians are just as venal as businessmen (and women) and probably will continue to be. What we can do is to strengthen our processes etc. A disclosure process for amnesty could help us with the information and intelligence we need to strengthen our institutions.

So, Mr Calland, what if we had a similar process to the Exchange Control and Income Tax Amnesty? It could be convened under an advocate and some designated members and could have a deadline of 31st December 2008. People/ companies could declare their violations in terms of corruption (and possible pay fines , and escape prosecution providing there is full disclosure). Should it be secret? I would like to see a report after the process detailing the findings so that this information can be used by all those authorities involved in corruption, public policy etc. Should it mention names?: maybe but maybe there could be a time-lapse or maybe the files detailing the individuals and companies could be opened after a certain period.

This NAPI (Not a Public Intellectual) cannot see why we cannot have a general amnesty process for the whole arms deal. Over to you Mr Calland.

Bev Gillespie on August 26, 2008, 7:07 pm

Some prophetic words from Robert Bolt's play, "A Man for All Seasons".

William Roper: Now you give the Devil benefit of law! Sir Thomas More: Yes, what would you do? William Rope: Cut a road through the law to get after the Devil? Yes. I'd cut down every law in England to do that. Sir Thomas More: And when the last law was down, and the Devil turned on you...where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast...Man's laws, not God's, and if you cut them down..and you're just the man to do you really think you could stand upright in the wind that would blow then? Yes. I give the Devil benefit of law for my own safety's sake.

Elisa Galgut on August 27, 2008, 8:19 am

With acknowledgements to Richard Calland and Mail and Guardian.