The ANC is stepping up efforts to keep its leader from having his day in court, write Karima Brown and Hajra Omarjee

Intense efforts are under way to end the seven-year legal impasse between Jacob Zuma and the National Prosecuting Authority (NPA), and to ensure he becomes the next president of the country.

Zuma, who has to answer to 16 charges of corruption, racketeering and tax evasion, is the African National Congress's (ANC's) presidential candidate in next year's general election.

With the ANC beginning its process this month to select its candidates for next year's elections, the tripartite alliance has initiated a new plan to shield its future president from going on trial while he is SA's first citizen.

Sources close to Zuma say a "series of engagements" to create an environment in which the NPA "will listen without prejudice" to Zuma's version of events has been set in motion. "There are positive signs that there is a willingness to engage the process," a source says.

NPA spokesman Tlali Tlali would not confirm whether there are talks between the prosecuting authority and Zuma, saying only that the NPA is ready to commence its trial.

The ANC and its alliance partners have been joined in their campaign by a significant section of the business community which argues having an accused person as a sitting president will be damaging for foreign investment and SA's international standing.

While there has been much talk over the past few months of a "political solution" - which includes enacting a law that will prevent a sitting president from being indicted - increasingly, the idea of a "legal solution" is being touted.

What is envisaged is a process that will allow Zuma and the NPA to enter into new discussions about the nature of the charges against him - and to talk about whether the NPA will seek to prosecute him at all costs *1.

The legal options the ANC and Zuma are exploring include requesting a review of the NPA's decision to prosecute Zuma in the hope that the charges against him will be dropped.

As a further safeguard , on November 27 Zuma is bringing an application for a permanent stay of prosecution on the grounds that his rights have been so abused by the NPA that he is unlikely to receive a fair trial *2.

Over the past few weeks senior alliance leaders have been tasked with engaging civil society, business, church and religious leaders to put forward the argument that a legal solution can be found.

On September 12 Judge Chris Nicholson will rule in the Pietermaritzburg High Court whether the process the NPA followed when it charged Zuma was valid, given that he was not allowed to make representations on the matter. If Nicholson rules in Zuma's favour, it remains unclear whether the NPA will have the appetite to initiate another legal bout with Zuma *3.

However, if Zuma loses his bid, he could still persuade the NPA to review its decision to prosecute by exercising his right to make representations to them. This process is likely to run parallel to a raft of appeals in the courts.

Those touting a legal solution to Zuma's troubles with the law are pinning their hopes on a review process that will allow Zuma and the NPA to "engage each other" on the exact nature of the case against him. Sources close to Zuma who have initiated interaction with the NPA say what is required is a "different climate" that will allow Zuma to explain his relationship with his former financial advise r, Schabir Shaik *4.

"Those who used the case as a pretext to persecute Zuma politically are no longer in the NPA," says a source close to Zuma. "Bulelani Ngcuka , Vusi Pikoli and Leonard McCarthy are all gone.

"The situation is very fluid and I believe that we can come to an arrangement whereby Zuma will be able to explain the nature of his relationship with Schabir without the clouded politics that preceded the prosecution*5."

Acting NPA head Mokotedi Mpshe might be the ace in Zuma's hand. An NPA insider described Mpshe as a "nice man who is too weak to do the job properly".

Mpshe has the sole discretion to decide whether to review the decision to prosecute Zuma.

Those in favour of a legal solution say Zuma's relationship with Shaik was never illegal *6.

"Zuma is not the only leader in the ANC who received assistance from his comrades," the source close to Zuma says.

"Yes, Schabir used Zuma's name to advance his own cause, but the same can be said for every other ANC leader who has assisted a former benefactor with securing deals and tenders when they were in government ... the whole system of black economic empowerment is based on this practice." *7

The source says the review process could include the NPA setting up a panel that will examine the Zuma-Shaik relationship and make a decision on whether to continue to prosecute.

"Zuma is prepared to explain his relationship with Schabir.

"We are of the view that if Zuma explains the nature of his relationship with Schabir, it will become clear that it was never illegal nor corrupt, especially given the circumstances which prevailed between comrades at that time *8."

The NPA set up a panel to decide whether there was a strong case against suspended national police commissioner Jackie Selebi after President Thabo Mbeki intervened when a warrant for his arrest was issued.

"This panel can be made up of people who cannot be manipulated politically and would go a long way to also restore the credibility of the NPA - given how they have conducted themselves on the Zuma matter," the source says.

But NPA insiders say Mpshe will find such a process "difficult to justify" *9 publicly - given the NPA's public stance that Zuma has a case to answer in court.

A legal solution which includes the dropping of charges will no doubt provoke mixed reaction in society. Opposition political parties will probably claim that the NPA has buckled under political pressure from an incoming administration and question whether the authority can ever take on political heavyweights.

But, given the NPA's history of plea-bargaining *10 with white-collar criminals and coup plotters such as Mark Thatcher, a deal with Zuma will neither be unprecedented nor out of character *11.

Supporters of this option believe it will allow Zuma to acknowledge that, while his relationship with Shaik was not "illegal, neither was it desired". But it will allow the NPA to remain a prosecuting authority that enjoys the political backing of the new administration *12, and to recover from its reputation as a "politically biased *13" institution that was bent on persecuting Zuma.

However, political observers believe a solution must emanate from a court process rather than a deal with the NPA.

Political analyst Stephen Friedman says an independent NPA review will send a signal that powerful politicians cannot be prosecuted. "You're saying that if they are crooks and they mobilise against the charges the case will go away," he says.

Centre for Policy Studies analyst Aubrey Matshiqi says even if there is consensus that Zuma cannot get a fair trial, a court of law must make that determination. "An NPA review is an academic option. I see it working in theory only as the NPA has already advanced a case."

Matshiqi says that should the NPA withdraw the charges, it will give currency to the widely held belief that the charges against Zuma were always politically motivated.

Other options to unlock the stalemate include Zuma's decision to apply for a permanent stay of prosecution. Zuma will be joined by the Congress of South African Trade Unions (Cosatu) and the ANC Youth League, who will apply to join as friends of the court. ANC insiders say this option will be costly for the executive and the ANC in political terms given that SA's controversial multibillion-rand arms deal is likely to be at the centre of such an application.

On Thursday Cosatu warned that such a hearing could lead to "the exposure of the truth behind the arms deal which could implicate a number of other personalities not currently charged" *14.

Sources close to Zuma say he will no doubt call Mbeki, Finance Minister Trevor Manuel, Public Enterprises Minister Alec Erwin, former justice minister Penuel Maduna and other government functionaries to the stand *15.

Mbeki has had to answer uncomfortable questions *16 about his involvement in the arms procurement process. He was the deputy president at the time and head of the cabinet subcommittee that oversaw the deal.

Among the unanswered questions were three meetings he allegedly held with French arms company Thint during this time *17.

The stay of prosecution application will turn into a "trial about the nature of our transition, the black middle class, the government and the ANC's involvement in the kickbacks of the arms deal", the source close to Zuma says. "It will not be pretty. *18"

In the event that Zuma's legal efforts to prevent him from standing trial is thwarted, the ANC will be forced to go the least preferred option of changing the law to shield Zuma from prosecution while holding public office.

"We are of the view that if Zuma explains the nature of his relationship with Schabir, it will become clear that it was never illegal nor corrupt, especially given the circumstances which prevailed between comrades at that time *19".

With acknowledgements to Karima Brown, Hajra Omarjee and Business Day.