|
Zuma's Challenge |
| Publication |
Cape Argus |
| Date | 2009-04-15 |
| Reporter | David Unterhalter |
|
Web Link |
Now that Jacob Zuma is free to pursue his political ambitions unencumbered
by the risk of prosecution, what does the decision to drop the charges mean for
the integrity of the National Prosecuting Authority (NPA), and for the rule of
law?
The decision of Mokotedi Mpshe, the head of the NPA, has been seen in one of
three ways.
The first is a world-weary perspective. Powerful people do not suffer the
burdens of the law. Mr Zuma is the coming man; he was never going to stand
trial. Those who enforce the law were going to yield or be replaced. We should
now move on and not expect that the law could have prevailed.
The second way of looking at the decision is to accept it at face value. Mr Zuma
was entitled to make representations. Mr Mpshe enjoys a discretion to decide
whether to continue with a prosecution. He has decided not to do so, and has set
out his reasons in detail. We may or may not find these reasons persuasive, but
we must respect the difficult decision that he has now made.
The third way asks what was expected of the NPA. If it failed us as an
institution, then we should continue to insist that it uphold its constitutional
mandate.
These positions should be considered in the light of the reasons Mr Mpshe gave
for his decision. Mr Mpshe has told us that as a result of the representations
made by Mr Zuma's lawyers, the NPA uncovered evidence that political
interference was brought to bear upon Leonard McCarthy, then-head of the
Directorate of Special Operations.
The influence was intended to persuade Mr McCarthy to institute the prosecution
of Mr Zuma before the ANC's conference in Polokwane, so as to compromise Mr
Zuma's political prospects. This interference so vitiates the prosecutorial
process that the prosecution could not be continued, even though there was no
reason to doubt the merits of the case.
It is very troubling that a senior office-bearer in the NPA was open to
political interference. It marks a disturbing but increasingly familiar feature
of our public life: independent institutions that exist for the common good have
become offices of party patronage and the battleground of political factions.
Mr Mpshe wants to restore the NPA's integrity, and reasons that the way to do
this is to recognise the abuse that has taken place and excise it by ending
Zuma's prosecution. The reasoning is flawed.
First, Mr Mpshe has not been subject to the political interference that he and
his team have uncovered. He has reviewed the case against Mr Zuma and is
satisfied that it has merit. The best way of demonstrating the integrity of the
NPA was to bring the prosecution to trial in an exemplary manner, showing that
the NPA could discharge its duties without fear or favour. If Mr Zuma wished to
impugn the process he could do so in open court and, if any unfairness had been
done to him, the courts would hear him.
Second, there is a great difference between a prosecution that is the product of
political meddling and a prosecutor who may have been influenced over its
timing. If a prosecution is brought as an act of political vengeance on trumped
up charges, then the machinery of state is abused irretrievably.
This has always been Mr Zuma's claim. But this has never been proved. And it is
not what Mr Mpshe says he found. Indeed, he says the prosecution was instituted
for good reasons on the basis of a sound case. Those who might have deviated
from their public duty or interfered with the administration of justice should
be investigated, but that does not warrant the end of Mr Zuma's prosecution.
Third, although Mr Mpshe enjoys a discretion to decide whether to pursue a
prosecution, the discretion to discontinue a prosecution on public interest
grounds is narrow. The NPA has a duty to prosecute cases that it considers to
have merits. It may deviate from this primary duty only if there is some
overwhelming consideration of public interest that weighs more heavily.
There must, for example, be some irretrievable prejudice to an accused of such
gravity as to render the prosecution unfair. But
this standard is not met in Mr Zuma's case *1. At worst, the political
influence may have had a bearing on the timing of Mr Zuma's prosecution.
This may have resulted in political prejudice to
him *2, but there is no discernible prejudice to Mr Zuma as an accused.
Finally, a number of important issues remain unresolved. If Mr McCarthy
was influenced as to the timing of the prosecution, what effect did this have
and who was party to the final decision on the timing? Why did Mr Mpshe and the
NPA not wait to obtain proper answers from Mr McCarthy and former NPA head
Bulelani Ngcuka?
The role of the National Intelligence Agency (NIA) remains murky. How did Mr
Zuma's lawyers obtain classified material? Was everything relevant to the matter
disclosed by the NIA? We may never know the answer to the questions, but it
leaves a sense that Mr Mpshe made his decision in haste. With all his good
intentions, he has only further damaged the standing of the NPA.
So, what now? It now falls to Mr Zuma and his new administration to make good
the restitution of our independent institutions. If Mr Zuma is a victim of the
abuse of political power, then let him ensure by conduct, and not fine words,
that people will be appointed to independent institutions who are independent
and whose independence will be respected.
Short of this the cynics will triumph. The rule of law will be eroded. And
before long, a new political faction will come along who will use the
constitution to secure their political ends. Then we will not ask whether the
integrity of the NPA can be restored, but rather how foolish we were to care.
David Unterhalter is a law professor and member of the World Trade
Organisation's appellate body.