Constitutional Hill

arms deal

Curiouser and curiouser in Wonderland

Mar 27th, 2009
by Pierre De Vos.
49 comments

Curiouser and curiouser!” cried Alice…. – From Alice in Wonderland.

You’ve got to love this country. Who needs The Bold and the Beautiful or Generations when you have the Zuma-saga to provide drama, mystery and intrigue? Now we are told (but can we believe this?) that Mr Zuma’s lawyers handed evidence – recordings of tapped phone conversations involving former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka, among others – to the NPA earlier this year as part of their representations as to why Zuma’s corruption case should be dropped.

According to the Mail & Guardian the recordings “are understood to include” material showing then Scorpions boss, Leonard McCarthy, in a very bad light indeed.

He allegedly makes statements, including “Mbeki is my president, he will always be my president”. After Mbeki’s Polokwane defeat, he allegedly said: “We must wipe the blood off our faces … it is time for a come-back strategy.” Also in the recordings:

  • McCarthy allegedly refers to Mbeki’s instructions that neither Zuma nor police commissioner Jackie Selebi should be charged before Polokwane, as the perception of victimhood would work to their advantage;
  • There was reference to Zuma allegedly reneging on a 2003 deal to retire from politics in exchange for the dropping of the prosecution against him. A Zuma insider told theM&G that there had been such an approach to Zuma, but that it had gone nowhere because he was affronted; and
  • There was reference to Mbeki ordering a third draft of the Scorpions’ “Browse Mole” report, which investigated allegedly illicit foreign funding for Zuma, even though Mbeki’s office publicly condemned the report.

Am I the only one to think that, if this is true, it is very bad news not only for Mbeki and Zuma, but also the NPA? If true, it demonstrates that both camps in the ANC power struggle abused (or are still abusing) state institutions such as the NPA and the police or intelligence services in their fight for power. Good thing the ANC has always maintained that the organisation is unified and that talk of divisions are a “deliberate falsehood” spread by the counter-revolutionary media. Otherwise I might have been worried about the sanity and health of the ANC and the threat the organisation posed to – dare I say – national security.

But let us look at the law. The tapping of phones are regulated by the snappily named Regulation of Interception of Communications and Provision of Communication-Related Information (Act 70 of 2002). This Act prohibits the interception of communications without the consent of the parties – unless specific narrowly defined criteria are met.

In certain emergency situations – where there are  reasonable grounds to believe that a person has caused serious bodily harm or is about to do so, for example – law enforcement officials are authorised to tap phones without obtaining permission from a judge  but only if it is not reasonably practicable to obtain that permission in time – given the urgency of the matter. Even then those officials have a duty to inform a judge after the fact.

In most cases phones can only be tapped where a judge gives permission and then only where the  judge concerned is satisfied that there are reasonable grounds to believe that a serious offense has been or is being or will probably be committed or where national security is threatened. Even then, unless exceptional circumstances exist, a judge can only give such permission if it was demonstrated that:

there are reasonable grounds to believe that the interception will actually obtain the relevant evidence and other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot adequately be investigated, or the information therefore cannot adequately be obtained, in another appropriate manner.

If these tapes do exist, the first question will therefore be whether a judge has approved the eavesdropping and on what grounds he or she did so. Unless a judge had reason to believe that McCarthy, Ngcuka and others were threatening the security of the state or that Mbeki was planning a coup, for example, I would be surprised if such permission had been granted. There is therefore the very real possibility that the eavesdropping was in contravention of the Act.

Second, it is a criminal offense to hand over such information – even if legally obtained – to private individuals. Unless I missed it, (and let’s face it, the Act is not a model of clarity and simplicity) the Act does not prohibit a private person from receiving such information and being in possession of such information. This does not mean, however, that Mr Zuma’s lawyer and perhaps Mr Zuma may not have contravened the law because in common law it is an offense to assist another person in committing a crime and those who received the information obviously assisted by making it possible for the illegal handing over of the information. They will therefore also be guilty of a criminal offense.

If the reports are true, Mr Hulley (and maybe Zuma) have exposed themselves to criminal prosecution – which would not be a very wise thing to do unless one was sure that one would never be prosecuted because, well, because one had the police who had to investigate the crime in your pocket.

A third question is whether such illegally obtained information could be used in Mr Zuma’s criminal trial. Section 35(5) of the Constitution states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. I am not a criminal procedure expert, but the jurisprudence seems pretty clear that such evidence will not be admissible in Mr Zuma’s criminal trial.

But would it be permissible in an application by Mr Zuma for the permanent stay of prosecution? I have no idea, but the question is, will such evidence assist Mr Zuma’s application? After all, Judge Harms recently stated in the Nicholson appeal that an ulterior motive alone will not make an otherwise lawful prosecution unlawful. Even if the tapes therefore show that the Scorpions boss was motivated by his loyalty to Thabo Mbeki, this in itself will not save Zuma from prosecution.

It therefore seems perplexing that Mr Zuma’s high powered legal team would have submitted this perhaps illegally obtained evidence to the NPA, thus exposing themselves to criminal prosecution. Moreover, if this is all true, Zuma and his legal team would have made a monumental political blunder.

In as much as Zuma had the moral high ground – at least in the eyes of some of his supporters – because of the perception that state institutions were abused to prosecute him, the use of illegally obtained evidence would completely undercut this position as it would demonstrate that Zuma was also abusing state institutions to try and avoid his day in court. In the process he would have managed to expose the NPA, but would have also destroyed the credibility and legitimacy of the security services, thus endangering our national security.

This means that all those Zuma supporters who enthusiastically cheered the firing of Vusi Pikoli because he allegedly endangered national security would – if they had even a smidgen of integrity – now have to  call for the removal of Mr Zuma as President of the ANC and for the prosecution of those who leaked the tapes and those who used it.

As I said, curiouser and curiouser, it gets.  Welcome to the mad hatters tea party. “Off with their heads, I say!”

Fact: Zuma has a case to answer

Mar 20th, 2009
by Pierre De Vos.
44 comments

No matter what decision the National Prosecuting Authority (NPA) takes regarding the prosecution of Mr Jacob Zuma, one incontrovertible fact remains: Mr Zuma does have a criminal case to answer. Another incontrovertible fact is that the arms deal has become a poisoned chalice for the ANC and has forever tarnished its reputation and destroyed our innocence as a newly reborn nation.

Let us look at the known and proven facts first. It is a proven fact that the lawyers investigating the Shaik-Zuma relationship made a unequivocal recommendation that BOTH Shaik AND Zuma be charged with corruption. Yet, then National Director of Public Prosecutions, Bulelani Ngcuka, decided only to charge Shaik, a decision righly called “bizarre” by judge Nicholson in his judgment that brought down President Mbeki.

When Shaik appealed the judgment ordering him to forfeit R33 million of ill-gotten assets, the Constitutional Court confirmed the factual basis for charges against Mr Zuma:

Counsel for the applicant [Shaik] very properly conceded in argument that, given the criminal conviction of Shaik, it must be accepted for the purpose of these proceedings that Mr Shaik did pay bribes to Mr Zuma. The payments were made by Mr Shaik in order to influence Mr Zuma to promote Mr Shaik’s business interest and, in attending the meeting [with Thomson-CSF] in London in July 1998, Mr Zuma did, as a matter of fact, promote Mr Shaik’s interests.

In terms of the substantive criminal law (as opposed to issues surrounding a fair trial), the only question that could possible lead to an acquittal of Mr Zuma is if he could somehow show that he received this money and then assisted Shaik to secure contracts in the arms deal, but that he did so without the intention of being corrupt. He will therefore have to argue that he was so naive or so spectacularly stupid that he did not realise that there was a link between all this money he received and the favours he then did for the man he received the money from.

This will be a rather difficult feat to pull off. As Andrew Feinstein demonstrated in his book, and as he reminds us again today in an article in The Star and the Cape Times, Zuma at first supported the work of Feinstein and others on Scopa to uncover the corruption in the arms deal, advising Feinstein to ignore pressure from then President Thabo Mbeki’s office (Mr Essops Fables strikes again!) to halt the inquiry.

But after Zuma and Shaik met with representatives of Thompson-CSF in Durban and Mr Thetard sent the encrypted fax confirming the  R500 000 a year bribe for Zuma, this support abruptly ended. As Feinstein points out:

No sooner was the fax received than Zuma cut off all communications with me and signed an absurd letter [written by Mbeki?!] to Gavin Woods (then chair of Scopa) vilifying the committee and defending the integrity of the international arms companies.

This could, of course, be a coincidence. And maybe global warming does not exist, HIV does not cause Aids, and Father Christmas will bring me a new Porsche this Christmas.

Three obvious questions arise. (1) Why did Mr Zuma first protect Feinstein and the ANC members of Scopa when this investigation could embarrass the ANC and could potentially implicate several leading figures of the ANC (including its then President) in the arms deal scandal? (2) Why did Ngcuka decide – against the advice of his investigators – not to charge Zuma despite the fact that there clearly was a case to answer? (3) Why did the NPA change its decision not to charge Zuma after the Shaik conviction and after Zuma refused to resign as Deputy President of the country?

On the first question: We now know that there was a political rivalry between Mr Zuma and Mr Mbeki, that Mbeki somehow got wind that Zuma had Presidential ambitions and that Mr Zuma was hence pressurised to make a statement that he had no intention of seeking the ANC Presidency. We also know of rumours – confirmed in the Mail & Guardian today – that Mr Mbeki was shielding some of the arms deal culprits and may himself have been involved in arms deal corruption, given the fact that Barbara Masakela has admitted she was present at meetings between Mbeki with French arms company Thint. (A meeting that Mr Mbeki mysteriously has no memory of.)

Is it therefore not plausible that Zuma, consumed by ambition, wanted to use Scopa to uncover arms deal corruption implicating his rival? It is not unreasonable to speculate that Zuma therefore might have protected Feinstein and the ANC members on Scopa in the hope that it would weaken or even destroy his rival. But after securing a bribe from the arms company – who understood this dynamic – he changed his tactics.

On the second question: We know Ngcuka met with some editors about the Zuma investigation and that this meeting he was alleged to have said that he was going to use a Solomonic solution against Zuma. He was therefore not going to prosecute Zuma – after all, Mr Zuma was a long standing comrade of Mbeki and, like Ngcuka, a disciplined cadre of the ANC, and comrades do not allow other comrades to go to jail. He therefore announced that there was a prima facie case against Zuma – as his investigators assured him there was – but declined to prosecute Zuma.

It surely is not unreasonable to speculate that this decision could have been politically motivated and that it was a neat but “compassionate” way of getting rid of a political rival. The announcement, so it might have been thought, would destroy Zuma’s political career, opening the path for Mbeki to stand for a third term as President of the ANC. Hence the bizarre decision of Ngcuka.

Which brings us to the third question: After Shaik was convicted, Mbeki through an intermediary, asked Mr Zuma to resign as Deputy President. If he had resigned it would have ended Zuma’s political career and would have cleared the way for Mr Mbeki to stand for a third term as President of the ANC. But Zuma – having presidential ambitions of his own and being a wily operator – refused to resign, forcing then President Mbeki to fire him.

It is entirely plausible to speculate that it was then that a decision was taken somewhere to prosecute Zuma to ensure that he will be politically neutralised. He might be a comrade, but he was being stubborn and his political ambitions and his survival instincts were standing in the way of an Mbeki third term. An announcement was then made in haste (before the NPA had the chance to formulate a case against Zuma) that he would be charged.

I sincerely hope that my speculation is all wrong. If I am correct it would mean that the ANC, through its cadre deployment policy, had thoroughly corrupted one of the pillars of our criminal justice system and that the NPA – a constitutionally created body whose independence has been guaranteed by the Constitution – was used to fight party political battles. We need the NPA to be impartial and independent and to be above party political battles and conspiracies. I sincerely hope that it has always acted accordingly, but I fear that it might not have done so.

But whether I am right or wrong, what is clear is that the arms deal has emerged as a pivotal moment in the history of the ANC.  It’s President has a very serious case of corruption to answer for because of the arms deal.  Rumours about it’s previous President’s involvement in the arms deal are flying all over the place and apparently now form part of the evidence provided to the NPA to try and stop the entirely legitimate prosecution of Mr Zuma.

We have lost our innocence, and all for a few big and expensive war toys we do not really need. And meanwhile, somewhere in the Free State today 30 people will die of Aids related illnesses because “there is no money” to put them on anti-retroviral drugs.

On debate, distrust and ethics

Mar 3rd, 2009
by Pierre De Vos.
9 comments

I am currently reading Eric Weiner´s very amusing book, The Geography of Bliss, in which he travels to various happy places (Iceland/Switzerland) and less happy places (Moldova/Quatar) and ruminates about what makes us happy.

In Moldova – where people seem to be extremely unhappy and even his host never can bring herself to express a more positive sentiment than that things are ¨feefty-feefty¨- Weiner discovers that life is hell when there is no trust in a society and when everybody looks at the problems around them and say: ¨it is not my problem¨.

Although Moldova seems rather extreme, I could not help but feel that South Africa’s problems also stems partly from this lack of trust and the widespread attitude amongst South Africans that each of us are in it for ourselves and that other people’s problems are not our concern.

So who cares that the hospital is dirty and babies die because of lack of higiene? Surely not most of the nurses in the Eastern Cape. Who cares if young children in rural areas have no food to eat or are heading households because their parents died of AIDS? Surely not most people in black Mercedes and 4X4`s who live in the white suburbs and complain about everything done by the ANC.

I am also struck by the way in which we debate one another and what that says about a deep sense of distrust and unhappiness about our world – often  without any real relation to the facts. Instead of trying to talk about the issues – how do we address poverty, corruption and crime, for example – we tend to blame one another and skirt the issues.

So when I point out that Mr Jacob Zuma (or Hansie Cronje or Schabir Shaik or Winnie Mandela) might have some ethical questions hanging over their heads and that we should try and fashion a new kind of public morality that stops hiding behind ¨innocent until proven guilty¨(or even innocent when one is ANC even if proven guilty) mantras, I am immediately attacked as a racist/anti-ANC/Zuma-hating/apartheid-loving dolt – and therefore I am someone who cannot be trusted and whose opinions need not be engaged with.

When I say that we should start talking about what it is we want and what we need to expect from our public figures and that we should not be happy with the kind of perverted public morality hoisted on us by the likes of Jacob Zuma, I am immediately told that Mr Zuma is the victim of a conspiracy and therefore I should not be allowed to mention the fact that he took more than a million Rand from a crook and then did some favours for that crook.

And when I ask questions about supposed Ms squeeky clean Helen Zille and why it might be that she wanted to stop a commission of enquiry into the spygate saga of her administration, I am immediately told that I am a traitor to my race and a useful idiot doing the dirty work of the ANC.

Why is it that we do not seem to be able to talk about the issues without reverting to name calling? Why is it that we argue by first discrediting the other person (an apartheid spy, a racist, a Cope sympathiser an ANC sympathiser, a homosexual, a woman…) and then denying them the right to raise often legitimate points?

I suppose the short answer is that this kind of reasoning – if one can call it that – works in South Africa because of the extreme distrust in our society. So if one is a politician one will obviously make use of what works: why engage with the real issues when one can just discredit the other person without having to answer in any way for what one has done or said?

It is also because our society is structured in such a way that allows us not to care about one another. If one is rich, one can privatise one’s health care and even one’s security – so who cares if the police force is corrupt? If one is an ANC insider one will get rich quick through some tender scam – so who cares about corruption which, after all, only really affects the really poor in society?

We are supposed to be a society based on the principle of ubuntu – but I wonder how much is left of this spirit of ubuntu in a society in which everyone  thinks that if they keep their head down, if they show a complete lack of ethical standards, if they know the right people, then they will be ok and the rest be damned.

That is one of the reasons I think the corruption is having such a corroding effect on our society. Corruption breaks down trust and creates the impression that if only one could also get in on the deal one’s life would be better. Maybe in the long term this will make us all less happy and we will end up like Moldova where – even if we win the world cup in soccer we will only say that we are feeling feefty-feefty….

On “deliberate falsehoods” and conspiracies

Jan 14th, 2009
by Pierre De Vos.
40 comments

Why is it that South Africans so love conspiracies and are so quick to believe in them? Your paper not delivered this morning? Must be a conspiracy involving various journalists, the tooth fairy and maybe Father Christmas (or Santa Clause as they call the ugly fat guy with the cotton wool beard here in the USA). Arrested after robbing a bank and being caught on the security camera waving at your mother? Must be a conspiracy by Glen Agliotti, Jackie Selebi, your mother’s new lover and maybe also the Loch Ness Monster.

I am by nature a rather sceptical person (maybe it is the legal training or maybe it is because I do not believe in the tooth fairy anymore, who knows?), so pardon me for not jumping so easily on the conspiracy bandwagon. It might well be that there is a political conspiracy against Mr. Jacob Zuma. Maybe the National Prosecuting Authority has been infiltrated by colonialist, racist CIA agents in cahoots with Thabo Mbeki, Tony Leon, and all those leaders of Cope who had the bloody cheek to start their own party. And, who knows, maybe judge Chris Nicholson concocted his own conspiracy theories when he sat down to write his judgment in the Zuma case - as was rather unkindly suggested by the Acting Deputy President of the SCA.

But as the SCA judgment on Monday made clear, no conclusive evidence have been presented for any of these conspiracy theories. This does not mean that there might not be some questions worth asking, of course. Questions like why Jacob Zuma was investigated and prosecuted for rather minor issues of corruption (the poor guy only received R500 000 from the arms company!) while Chippie Shaik, the ANC and various other players reported to have benefited far more from the arms deal have so far not been charged.

It is worth asking such questions, but maybe we should be a little bit careful before making wild allegations of conspiracies because we might just come accross as mentally unstable and a bit coocoo. If we are not careful we might even be confused with Julius Malema or those wonderful people from the Young Communist League who entertain us with their almost daily badly written, and sometimes downright weird, press releases.

I therefore have some sympathy for Mr. Thabo Mbeki who was fired shortly after Nicholson in effect found that Mbeki and his Ministers had meddled in the prosecution of Zuma – thus seeming to confirm one of the most widely held conspiracy theories around. In the absence of hard evidence, it was rather surprising that a judge in motion proceedings would come to such a conclusion, despite the lingering questions about the whole Zuma affair.

Who knows what Mbeki had whispered into the ears of advisors about the Zuma prosecution and what they, in turn, might have whispered to the NPA?  Who knows why Mbeki had not intervened to stop the prosecution of Zuma? Why he had fired Zuma as Deputy President – even before he was charged - but went into an apoplectic fit when Vusi Pikoli wanted to arrest the Police Commissioner for corruption and then got his advisors to help quash the warrants for Jackie Selebi’s arrest. (This latter fact was proven beyond doubt during the Ginwala Commission of Enquiry, so those Mbeki fans out there, calm down.)

But I was nevertheless, shall we say, suprised and amused by some aspects of Thabo Mbeki’s response to the SCA judgment. First, Mbeki gives his own interpretation of the judgment that might – at best – be described as a rather innovative interpretation of its outcome and - at worst – as a twisting of the facts. Said Mbeki:

We intervened in the NPA appeal to the SCA because we wanted to correct the unfair and unwarranted inferences made by Judge Nicholson against us, and as the SCA said, we “had ample reason to be upset by the reasons in the judgement which cast aspersions on (us) without regard to (our) basic rights to be treated fairly.” The SCA ruling has vindicated us.

Problem is, only in the most broadest sense of the word has the SCA “vindicated” Mbeki and his cabinet. The judgment decidedly did not find that there was no political meddling in the Zuma prosecution. It merely said that there was not sufficient evidence before the court to have made such a finding – especially given the rules of evidence that apply in motion proceedings. The jury is still out about whether Mbeki and his cabinet did interfere or not, so to talk of a vindication is perhaps a little bit premature.

But this is perhaps a small point. One must not be too churlish. Given the fact that Mbeki was fired in the wake of the Nicholson judgment – even though he was not given an opportunity to give his side of the story – one can be generous and allow the ex-President to stretch the truth a little to score a political point against those upstarts who think they can run the country into the ground as well as he did.

So, let’s grant Mbeki the satisfaction of the claim that he was vindicated and move on to the last paragraph of his statement, which brings us right back into – you guessed it! – conspiracy theory country. In vintage Mbeki style and with all the dry, bitter, certainty of a person who once questioned the link between HIV and AIDS because of what he read on the Internet – to the detriment of 300 000 people who then died – Mbeki continues:

It seems to me that the unacceptable practice of propagation of deliberate falsehoods to attain various objectives is becoming entrenched in our country. I am pleased that the SCA has provided firm leadership in this regard by insisting that nobody’s integrity should be impugned on the basis of untested allegations.

Mbeki loves that phrase – “deliberate falsehoods”. It suggests that Mbeki thinks that there is only one possible’s interpretation of any set of facts, that what he claims to be true must be accepted by the rest of us as absolute and final proof of that Truth, and that any questioning of his version of events or his interpretation of the facts constitutes a conspiracy to ”deliberately” spread false information.

He seems to think: “I told you what the Truth is – yet you do not believe me. How can that be? How dare you? The impertinence! Surely you know that I am so wise, so imbued with integirty, wisdom and an ability to interpret facts definitively (a bit like God, really) that what I say will ALWAYS be true, just because I said it. If you then question the Truth of what I said, it must be because you deliberately want to spread falsehoods about me, my government, black people in general, the arms deal, the existence of crime, the nobility of the masses of our people, the ANC and its traditions and, for that matter, HIV and AIDS.”

This seems to me like a very, very scary world view for a leader of a country to hold. It eschews doubt for a kind of messianic certainty. It fails to understand that in a democracy politicians must earn our trust through their words, yes, but also through their deeds, that we – “the masses of our people” - have a duty to be sceptical about the self-exculpating claims made by politicians and that we are not part of some conspiracy, deliberately spreading falsehoods about the politician or his government, just because we do not believe every word the politician – even our President – says.

Besides, sometimes the known facts are open to different interpretations and even reasonable people may differ about how the known facts can or should be viewed. We all interpret facts from the vantage point of our own world view. Mbeki has often made the excellent point that many sceptics of his government interpreted the facts about South Africa’s progress away from apartheid injustice towards a more egalitarian and sane country, based on their rather Afro-pessimistic, colonialist, world view.

But that does not mean Mbeki himself does not have a world view and that his interpretation of an event or of a set of facts will be devoid of self-interest, delusional paranoia or prejudice. Just think about his flirtation with AIDS denialism. Duhhh!

The fact that he never could apply his excellent insights about the inevitable situatedness of our version of events to himself says a lot about the tragedy of Mbeki’s reign as President of the ANC and the country. When one forgets that one’s world view might not be shared by others and that one’s interpretation of the facts might be clouded by the fact that one travels in a eleven car motorcade and are obsequisly bowed down to by others, one becomes arrogant and out of touch. And that is one of the real, very human, tragedies of Thabo Mbeki’s Presidency.

Zuma might be a nifty dancer but he does have a case to answer

Jan 13th, 2009
by Pierre De Vos.
38 comments

Why is it that so many of the die-hard supporters of Mr Jacob Zuma believe that judges who rule against Mr Zuma or academics who point out the errors in judgements favouring Mr Zuma have a deep and abiding hatred of Zuma? I for one do not hate Mr Zuma. Many people say he is a nice guy and who am I to disagree as I have never met him.

After all, he attends braais with Steve Hofmeyer and Leon Schuster, visits poor whites as well as marginalised and reviled groups in townships, carries a tune and regularly entertains us with some nifty dance steps outside courtrooms – a bit like Michael Jackson really, but without the weird skin “disorder”.

Ok, Zuma is a homophobe and he is a sexist – but that makes him no different from almost 90% of South African men. He is not much different from our fathers and our brothers and friends. I suspect the five judges who handed down the decision yesterday do not hate Mr. Zuma either. (Maybe they do have a grudge against judge Nicholson, but that’s another story….)

So one should distinguish between one’s personal feelings about Mr. Zuma on the one hand, and the legal and political issues on the other. It does not constitute hatred of Mr. Zuma, the ANC, black people, traditional African values, or the struggle, to point out that yesterday’s SCA judgment reminds us that Mr. Zuma has been charged with very serious counts of corruption (which carries a fifteen year jail term), that even Bulelani Ngcuka who refused to prosecute him said there was a prima facie case for Mr Zuma to answer, but that Zuma has done everything in his power to ensure that he does NOT have to answer that case (unlike with the rape charge which he quickly and squarely faced and won).

In this spirit it might be important to ponder the legal realities of Mr Zuma’s case in the wake of the SCA judgment. When doing this, it is always good to see what Cosatu has to say on the topic (because unlike on many other topics, Cosatu is usually dead wrong on Zuma). So I was amused to note that News24 is reporting that Cosatu does not believe that the SCA judgment handed down by a full bench of five judges yesterday:

changes the basic facts, which are that it will be impossible for the ANC president to have a fair trial given the long delays and the trial by media.  Cosatu remains convinced that the whole prosecution process has been politically motivated and will continue to demand the dropping of all charges.

It might well be that Cosatu has a point here. Maybe Mr. Zuma was only targeted for investigation and prosecution because he was a rival of Thabo Mbeki and maybe his case is therefore politically motivated. As the SCA pointed out so astutely yesterday, we have no way of knowing whether this is correct or not as we have no evidence before us to prove or disprove this suspicion. It might be true, or the Scorpions might only have investigated Mr. Zuma and not Mr Mbeki, Chippy Shaik, the ANC itself (whom the Sunday Times alleged last year got R28 millions in bribes from arms dealers to finance their 1999 election campaign)) because they were lazy or lacked the manpower. Who knows? Anything is possible.

But let us accept that it is true (as Cosatu and Mr Zuma himself is suggesting without providing any proof)  that Mr Zuma’s prosecution is politically motivated. What should we do about it and where does it leave Mr Zuma – LEGALLY?

Well, we do know that Mr Schabir Shaik was convicted for bribing Mr. Zuma and for soliciting a bribe on behalf of Mr Zuma – the Constitutional Court even confirmed this finding. We therefore know that Mr Zuma has a very serious case to answer. Ordinary, level headed individuals might well harbour a reasonable suspicion that he is guilty of corruption.

The only question in Mr. Zuma’s case is really whether the state will be able to prove – beyond reasonable doubt – that Mr Zuma had the necessary criminal intention to be corrupted and to accept the bribe from the arms company. Only a court can make that determination. But because Mr Zuma has taken every legal point our taxpayers money can buy to prevent a court from considering the matter, we have to wonder – as a matter of politics and morality, not of law – whether he does not have something serious and ugly to hide (and I am not talking about his man breasts).

It is the job of the media and us academics to point this out. This is NOT a trial by media. It is called accountability in a democracy. Cosatu has not argued – nor can they credibly do so – that Mr. Zuma has no case to answer and that the media has made up the reports about Mr Shaik’s conviction, the encryptred fax implicating Mr Zuma in bribery, the millions of Rand given to Mr Zuma by the fraudster and the favours done by Zuma for that fraudster. These facts are all in the public domain.

Mentioning them does NOT constitute a trial by media – it constitutes straight forward news reporting, which, the last time I checked, was not only allowed in a democracy but actually essential for the flourishing of democracy.

So Cosatu is talking through its nose when it natters on about a trial by media. For them a trial by media means the media mentions proven facts that puts their hero in a bad light.

What remains is the question of whether Mr Zuma would be able to get a fair trial, given the very long time this case has been dragging on. Mr. Zuma might well decide that he does not want to take a chance in court. He then has a right to avoid clearing his name and to approach a court with an application to have his trial quashed on the basis that a fair trial was impossible and that a permanent stay of prosecution must be granted. That would be his right as a citizen of this country.

Who knows, the right judge might even agree with him. Cosatu leaders, however, are not judges so they cannot make a ruling on the matter. Their statement is therefore premature as it usurps the power of the judciary to make a decision on the matter if it is ever brought before such a court. Pointing this out does not make one a hater of Zuma, merely a level headed person trading in facts. But facts are not welcome in the land of Zumaville – especially if those facts suggest that Mr Zuma is a bit of a shyster.

If I was a Cosatu spokesperson I would argue that there are circumstantial evidence that Mr Zuma was singled out for investigation because he was a threat to Mr Mbeki politically, that many others – including the ANC itself – have to be investigated and brought to trial if crediblke evidence is found of corruption, and that courts must then, once and for all, decide who is corrupt in South Africa and who is not. If Mr Zuma is innocent, he should volunteer to go first – as he will then be acquitted and his name will finally be cleared (and the media will dutifully report on this, as they have reported on the various serious allegations now hanging over his head).

This is not going to happen of course. Because a trial might go horribly wrong and Mr Zuma might find himself not in the Union Buildings but in Pollsmoor Prison. To avoid this unpalatable fact, those of us who remind Cosatu and others of it will continue to be branded Zuma haters, racists, colonialists, Michael Jackson supporters or whatever insult is at hand.

But insults cannot erase facts, so we will continue to wonder why it is that Mr Zuma is so desperate to avoid his day in court.

Don’t hold your breath for an arms deal commission of inquiry

Dec 3rd, 2008
by Pierre De Vos.
120 comments

A joint letter signed by Nobel Peace laureates Desmond Tutu and FW de Klerk has been delivered to President Kgalema Motlanthe’s office on 2 December 2008, urgently requesting that he institutes an independent and public judicial  commission of inquiry into the arms deal. The letter argues that:

the widest possible investigation into impropriety and corruption is appropriate. The commissioners should be required to indicate who, if anyone, should face prosecution and on what charges. There should also be an investigation into the possibility of cancelling arms deal contracts tainted by corrupt and fraudulent dealings, and recovery of payments already made. The urgency of the matter is self evident. The country is moving towards a general election, and the voters are entitled in the spirit of free and fair elections to be informed about what has become a major scandal in the country’s political discourse. Should you decline this petition, we respectively request that you furnish the reasons for your decision.

But what happens if President Motlanthe refuses to appoint such a commission? Could the Constitutional Court order him to appoint such a Commission? Would it ever issue such an order? I am afraid the answer to both questions is almost certainly no.

The argument being made is that section 84(2)(f) of the Constitution states that the President “is responsible for… appointing commissions of inquiry”. Moreover, section 83(b) states that the President “must uphold, defend and respect the Constitution as the supreme law of the Republic”. This means the President has a duty to take steps to uphold the founding values of our Constitution, especially section 1(d) which states “the Republic of South Africa is one, sovereign, democratic state founded on”, amongst others, “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Given the widespread credible allegations of corruption in the arms deal, so the argument goes, the President has a constitutional duty to apppoint a full commission of inquiry to ensure accountable, responsive and open government. If he fails to do so he would be failing in his duty to uphold, defend and respect the Constitution – and the Constitutional Court would have the power to order him to do so by appointing a commission of inquiry.

If I had any money to spare, I would take a sizable bet that this argument is not going to fly with the Constitutional Court. There are several reasons for my scepticism.

The power of the President to appoint commissions of inquiry stems from the prerogative powers, which in the United Kingdom rested with the monarch and always had a strong political discretion attached to them. Although these powers have now definitively been captured in our Constitution, they have  retained their strong political dimension and as the Constitutional Court made clear in the Hugo case the exercise of these powers would very seldom be reviewable by a Court.

Where these powers are exercised (or not exercised) a court would only intervene if the decision by the President was irrational. One would have to show that the decision was arbitrary, capricious or in bad faith – something that would be very difficult to do, given the many different policy options open to the President to fulfill his constitutional duty to uphold and defend the founding values of openness and accountability in our democracy.

This is appropriate because the separation of powers doctrine requires our courts to respect the power of the executive to make the kind of political choices associated with a decision to appoint or not to appoint a commission of inquiry. Even if the Constitutional Court could be persuaded that the President had failed to defend the values of openness and accountability enshrined in section 1 of the Constitution because allegations of corruption in the arms deal have not been dealt with decisively, it would not order the President to appoint a commission of inquiry into the arms deal because the judges would feel this would interfere with the powers allocated by the Constitution to the President (and not to the court).

Of course, it would be rather difficult to convince the Constitutional Court that the President had not defended these constitutional values, given the fact that an investigation into the arms deal had already been conducted by the NPA, the Auditor General and the Public Protector. The report produced by these agencies was of course doctored by President Mbeki, but this in itself would probably not be enough to convince a court that the President has failed in his constitutional duties.

Judge Nicholson did suggest that the President should institute such a commission, but I am quite convinced that these kinds of mutterings (just like his findings about the political conspiracy)  would never have been made by the Constitutional Court. The latter court is far too aware of its appropriate role in our system of constitutional democracy based at least partly on the principle of the separation of powers. As a matter of judicial politics it is a non-starter.

Having said that, it is interesting to note that apart from Trevor Manuel, none of the individuals or organisations implicated in arms deal corruption have sued those who had made these allegations. While Thabo Mbeki’s lawyers immediately sprang into action after the Nicholson judgment in effect found that he had interfered with the NPA, he has not sued the Sunday Times for alleging that a bribe of R30 million was solicited from a succesful arms bidder and that R2 million was given to Jacob Zuma and the rest channeled to the ANC. Come to think of it, neither has Zuma sued anyone for this scandalous allegation – despite the fact that he has taken action to sue a cartoonist and some newspaper editors for making fun of him.

I imagine in a defamation case, the ANC (and Zuma) would be requested to provide information about their finances and this information may well provide embarrassing details or even incriminate them. No wonder no one has sued either Andrew Feinstein or the Sunday Times for alleging the ANC received money from at least one of the succesful bidders in the arms deal.

That is also why our President will probably not appoint a commission of inquiry into the arms deal as the Commissions Act provides wide powers for a commission to summon witnesses and to compel them to provide books, documents or other material requested by the commission. If I was the ANC Deputy President, the last thing I would want to do was to appoint a commission of inquiry that could summons all the financial records of the ANC since 1997. (But if that commission could be persuaded only to get their hands on all Zuma’s financial records, that might be helpful if one wanted to remain President after the election!)

Imagine what a field day the press would have with all the dirty little secrets on ANC funding that will emerge – even if it turned out that no money was paid by arms bidders to the ANC. Nee wat, there is no chance that our President will appoint this commission. Nice try though.

On the art of denial and the eloquence of silence….

Aug 11th, 2008
by Pierre De Vos.
68 comments

I see MAN Ferrostaal has issued a statement about the claims by the Sunday Times that it paid a R30 million bribe to the ANC, facilitated by President Thabo Mbeki. The Sunday Times also claimed President Mbeki gave R2 million of this money to Jacob Zuma. The statement by MAN Ferrostaal reads in part:

MAN Ferrostaal never made any payments to SA President Thabo Mbeki, to Jacob Zuma or to any other member of the ANC or to any other public official. MAN Ferrostaal in addition states that the articles mentioned contain a large number of factual errors with regards to MAN Ferrostaal and therefore violates the basics of journalistic accuracy.

The statement does NOT deny that money was paid to the ANC – only that it was not paid to an individual official. If such a denial is issued by a big company it is always important to note what is being denied and what not because it will tell one what the truth might be. The fact that MAN Ferrostaal does not deny giving money to the ANC is basically an admission on its part that it did give money to the ANC. That’s all sorted out then. All we need to know now is why they gave this money, what understanding they reached with ANC leaders about the quid-pro-quo for this payment to the ANC and whether their investment was a good one for their business.

Unless I have missed it, the only person who has now not issued SOME kind of denial about the Sunday Times report is Mr. Jacob Zuma. Wonder why he is so silent. In the absence of a blanket denial from him, his silence speaks rather eloquently about his own involvement in this tawdry affair just as the Presidency’s denial that Mr. Mbeki did not benefit personally from any bribe is rather telling.

One thing is for sure: we have not yet heard the end of the arms deal. As the ANC infighting continues more people will talk. Why don’t the ANC just come out and admit they received money from arms dealers so that the bleeding can stop. The first lesson of how to deal with a scandal is to deny that which can be denied, admit the rest, apologise to the nation and move on. The silence just breeds suspicion and the bleeding will continue.

What’s going to happen now with that diary?

Aug 6th, 2008
by Pierre De Vos.
17 comments

I see there was a coup d’etat in Mauritius. Wonder where that leaves the NPA request for the diary that shows Mr. Jacob Zuma met with arms dealers who allegedly paid him a bribe? Mr. Zuma’s appeal on that matter is still pending in the Mauritius courts. If I was a conspiracy theorist – which I am not – I would wonder about the timing of this coup and whether it has anything to do with a plot against the NPA!

UPDATE: Eish! I am obviously so obsessed with the Zuma matter that in my haste between appointments I read Mauritius for Mauritania! So no plot against the NPA then.

Arms deal just won’t go away

Aug 3rd, 2008
by Pierre De Vos.
54 comments

When I saw the front page of the Sunday Times this morning my first response was not shock, but amazement. The newspaper reported that a German shipbuilding giant paid President Thabo Mbeki R30m to guarantee it won the submarine contract in South Africa’s multibillion-rand arms deal and that Mbeki gave R2m of this to Jacob Zuma and the rest to the ANC.

The story was based on a secret report compiled in 2007 by a UK specialist risk consultancy. The consultancy was commissioned by a leading Central European manufacturer to investigate the worldwide activities and “questionable business practices” of the shipbuilder, MAN Ferrostaal, which had launched a hostile takeover bid against it.

I was amazed that the Sunday Times would publish such defamatory allegations based on what at first appears to be rather flimsy evidence. Don’t they have libel lawyers working for them? If the story is not true then Mbeki would be able to sue the pant off them – even under the more even-handed libel laws developed by the Constitutional Court.

But then I read further and was even more amazed at the response from the Presidency. According to the Times:

Mbeki’s presidential spokesman, Mukoni Ratshitanga, said: “These allegations have been in the public domain for some time, which gives lie to the assertion that they are, for whatever reason, ‘unlikely (to) … be leaked in the near future’. They are of such fantastical proportions as not to warrant any response.” The Sunday Times pointed out to Ratshitanga that this was in fact a new allegation. He failed to respond.

This means that the Presidency has not denied the allegations, merely refused to comment. Where is the moral outrage, the threats of a defamation suit? The response creates the impression that the allegations might well be true. Why on earth not deny the allegations? Why not attack the Sunday Times for its counter-revolutionary tendencies?

It made me wonder. If the allegations were true or at least partly true and Mbeki sued, it would be a disaster for him and the ANC. The Sunday Times lawyers could get access to the ANC financial statements when a defamation case is brought, so is this why the Presidency responded in such a weird manner? Do they have something to hide?

The ANC also did not sue Andrew Feinstein for alleging in his book After the Party that the ANC’s 1999 election campaign was bankrolled by an arms deal bribe. If they do not sue, one will be hard-pressed not to assume the worst. If I was a journalist I would ask Mbeki if he is going to sue and if not why not.

If it was true then it would also explain why Jacob Zuma is so aggrieved for being prosecuted for taking a R500 000 bribe. The double standard would be breathtaking.

Sue Mr President! Otherwise we will have to conclude that you and your party are crooks.

UPDATE: The Presidency issued a statement today that says: “The Presidency would like to place it on record that President Thabo Mbeki has never at any stage received any amount of money from MAN Ferrostaal.  The Sunday Times or anyone who has evidence that the president or anyone else received bribe(s) in the procurement process should, as we have emphasised before, approach the law-enforcement agencies.” I note the Presidency does not deny that the ANC received money….

Zuma trial must go ahead

Jun 23rd, 2008
by Pierre De Vos.
17 comments

I always liked comrade Blade Nzimande, leader of the South African Communist Party (SACP). Maybe it is because he sounds so camp when he speaks; or perhaps it is because the SACP has sometimes been a voice of reason on important issues such as Zimbabwe and the need for internal party democracy in the ANC.

I was therefore rather shocked to read in Business Day this morning that Nzimande, speaking shortly after the KwaZulu-Natal ANC conference where a call was made for the scrapping of Mr Jacob Zuma’s criminal trial, seemed to endorse this call, telling a rally of supporters:

This trial of (ANC) president Jacob Zuma is not a criminal trial but a political trial. It may be the first political trial since 1994.

Now, there has been a lot of dark muttering about the political motives behind the prosecution of Mr Zuma. So far no one has been able to provide any evidence of the conspiracy against Zuma and Mr Zuma himself has not come clean to explain who is leading this conspiracy and how they actually fabricated all this evidence of wrongdoing which have already led to the conviction and imprisonment of Schabir Shaik.

Mr Zuma has also never explained why he took all this money from a convicted fraudster, why he had met with arms company representatives who then paid him money via Shaik, why he had done favours for the fraudster, why he lied to Parliament about meeting the arms company representatives and why he is so anxious to prevent the diary of the arms company representative that shows he met with this representative from being tendered as evidence against him in a criminal trial.

As the defendant in a criminal trial, he has a right to remain silent and need never explain these things to anyone. But as a politician he really should not have this right. In a mature democracy his failure to answer these questions would long have disqualified him from holding office in any political party. I am surprised that journalists have not been more vigorous in asking Mr Zuma about these things. Surely if he wants to be President of the country he has a duty to explain to the public and to present an alternative version of the actual proven facts which – in the absence of an explanation – make him look like, how shall I put it, a crook.

It is not inconceivable that the Scorpions might have felt that it had political cover from President Thabo Mbeki to go after Zuma and that if President Mbeki had been as vigorous in undermining the Rule of Law to protect Zuma as he was in undermining it to protect his friend Jackie Selebi, then this case would never have seen the light of day.

But the problem is not that Mr Zuma is being charged. The highest court in the land had already confirmed that Zuma took more than a million bucks from a convicted fraudster as well as R500 000 from an arms company that was solicited as a bribe by Shaik and that he had done several favours for that fraudster, and had lied to Parliament about meeting the representatives of the arms company that gave the bribe. It also seems rather strange that an innocent man would do everything in his power to prevent documents about his financial affairs from being used in his trial.

It is for a court of law to decide whether these actions amount to criminal offenses, but it clearly makes Zuma a deeply flawed and damaged candidate for President. Especially in the absence of any explanation from him.

If the SACP wanted to act in a principled way to the prosecution of Mr Zuma it would not talk about the Zuma trial being a political trial. Instead it would affirm respect for the Rule of Law, the independence of the National Prosecuting Authority and our courts, and would call on the Scorpions to also vigorously investigate and, where appropriate, prosecute other politicians who had taken bribes during the arms deal.

If there is a problem with Mr Zuma’s trial, it is that he is being singled out for prosecution while others (including the ANC itself, according to Andrew Feinstein) might be getting away. The only decent and principled thing would be to ensure that all those who had taken money from arms companies (Chippie, where are you?) are also prosecuted and to demand that the Scorpions does its job properly.

But Nzimande and other supporters of Mr Zuma is really trying to defend the indefensible. Whether Mr Zuma is ever convicted of a crime or not, we already all know that he is ethically tainted and that he is unfit for high office.

This kind of attack undermines respect for the the criminal justice system and our courts and is dangerous. It prepares the groundwork for a rejection of a guilty verdict against Mr Zuma as “political” (no matter what the facts might say) and really undermines one of the pillars of our democracy – all for short term political gain.

As Hillary Clinton might have said: “Shame on you Blade Nzimande.”

← Earlier Posts Newer Posts →