Constitutional Hill

Thabo Mbeki

“I did have national security with that man”

May 15th, 2009
by Pierre De Vos.
46 comments

Former US President Bill Clinton famously lied to the American people by saying: “I did not have sex with that women”. He then tried to wiggle out of a difficult question posed by a lawyer by saying: “Well, it depends on what your definition of ‘is’ is”. Former President Thabo  Mbeki seems to have the same informal relationship with the truth regarding the suspension and purported firing of National  Director of Public Prosecutoins (NDPP), Vusi Pikoli.

In a remarkable affidavit submitted to the North Gauteng High Court by Mbeki in support of Pikoli’s purported firing, the former President tries to wiggle out of the corner he has painted himself into on this matter.

After all, if Pikoli was really suspended and then purportedly fired for dismissing Mbeki’s request to wait two weeks before arresting former police commissioner Jackie Selebi, thereby disregarding national security concerns, surely this should have featured in the letter that Mabandla wrote to Pikoli two days before his suspension?  And again, in the letter Pikoli received from Mbeki, suspending him? Perplexingly, this accusation was also missing from the terms of reference of the Ginwala Enquiry  itself.

No wonder Mbeki’s affidavit is so opaque and – dare I say – misleading. Either Mbeki and his office lied to the nation when Pikoli was suspended or he is lying in his affidavit submitted to the court. But he seems less adept at this kind of fudging of the truth than Bill Clinton ever was so the result is rather embarrassing.

First, Mbeki’s suggests that in his letter in which he suspended Pikoli he mentioned the threat posed by some crimes to national security “and expressed a concern regarding the applicant’s exercise of his discretion to prosecute offenders and the potential effect of such exercise on national security”. Given the fact that Pikoli was ostensibly fired because he failed to take into account national security issues when he obtained a warrant for Jackie Selebi’s arrest, this might suggest (admittedly without saying so directly) that the President’s letter had anything to do with the Jackie Selebi matter. It clearly did not. The “national security” concerns expressed in the letter related to plea bargains and had nothing to to with Selebi.

Second, Mbeki states that section 179(6) of the Constitution “stipulates that the Minister of Justice and Constitutional Development… must ensure that the Prosecuting Authority serves the public interest“. Unfortunately there is no such provision in the Constitution. Nor is there any case law interpreting this provision in the manner suggested in the letter.

Third, Mbeki claims that he did not mention the national security concerns relating to the arrest of Jackie Selebi because an Enquiry would be held in which this question could be ventilated. This does not seem accurate, as the terms of reference of the Ginwala Enquiry refers to “the threat posed by organised crime” to the national security of South Africa” and does not mention any threat to national security posed by the arrest of Selebi. So, unless Mbeki is of the opinion that the Police itself is an organised crime ring, it cannot be true that the arrest of Selebi was something he envisaged would be dealt with by the Ginwala Enquiry.

Moreover, when the government presented its case against Pikoli at the Ginwala Enquiry it failed to mention any – I repeat ANY – concern that Pikoli’s actions to obtain an arrest warrant for Selebi was in any way threatening national security. Claiming now that such concerns was at the heart of the suspension of Pikoli can only mean one of two things: Mbeki and his underlings lied until now about the real reasons for Pikoli’s suspension or they are lying now.

Fourth, Mbeki denies that Pikoli regularly reported to him on progress in the Selebi investigation. According to Mbeki, where meetings were held with the NDPP it was to “facilitate access to information held by the SAPS”. This denial seems difficult to sustain. In an affidavit provided by Acting Head of the NDPP, Mokotedi Mpshe, Mpshe claims that the NDPP had met with the Minister and Mbeki on ten different occasions to inform them about the Jackie Selebi matter. Moreover in a fourteen page letter written to Mbeki on 7 May 2007 by Pikoli, the President is extensively informed about the Jackie Selebi investigation. Anyone who reads this letter will have difficulty in agreeing with Mbeki’s contention that he was not informed about the investigation. But I suppose it depends on what your definition of “regularly” is.

Interesting, Mbeki now claims that when he suspended Pikoli he “did not purport to place verbally before [Pikoli] all the grounds” for his decision. This means that Mbeki is now admitting that he misled Pikoli and the public and that the grounds given to Pikoli and later communicated to the nation for the suspension were not the only reasons for his suspension. Despite claiming at the time that the suspension was due to a breakdown of the relationship between Pikoli and the Minister, Mbeki now claims there were other grounds never communicated to us and that his spokespeople lied when they denied the suspension had anything to do with the Selebi matter.

Mbeki also has to explain why he did not respond to Pikoli when he said he would give the President one week to prepare the environment for the arrest of Selebi and he does so by contradicting himself. First, he denies that he did not raise the national security issue with Pikoli when he suspended him but a few paragraphs later he states: “I fail to understand how my failure to complain directly to what I viewed as a fait accompli can be construed as a lack of concern that I was not informed of the intention to obtain the warrants.”

This does not seem to make sense and seems like an obvious contradiction. I suppose it is difficult to keep your story straight if your story keeps on changing. But I suppose it depends of what your definition of “directly” is.

This affidavit tries to argue ex post facto that Pikoli was suspended only because he obtained an arrest warrant for the National Police Commissioner. But the Presidency at the time explicitly denied that this was so. I am not sure Mbeki appreciates how poorly this admissions in his affidavit reflects on the credibility and integrity of the Presidency during his term.

The only possible conclusion one can draw from this affidavit is that – like Bill Clinton – the former President is rather economical with the truth. What we do not know is whether the lies occured when Pikoli was suspended or whether they are happening now.

Mpshe was wrong to drop Zuma charges says plagiarised judge

May 8th, 2009
by Pierre De Vos.
24 comments

The website Grubstreet has a nice scoop on an issue that many people wish us to sweep under the carpet now that we have had our election. After all, we are now all going to live happily ever after and Mr Jacob Zuma is going to eradicate poverty and unemployment in the next year. That will teach the mother grundies who just cannot seem to forget that our President-elect has a very dark ethical cloud hanging over his head.

Grubstreet reports that Justice Conrad Seagroatt – the man whose judgment was plagiarised by Mpshe to try and justify the indefensible – has suggested that acting National Director of Public Prosecutions, Moketedi Mpshe, was wrong to drop the charges against ANC President Jacob Zuma when he did.

When the judge had initially been contacted by the journalist Gill Moodie, Seagroatt had described Mpshe’s plagiarism of his judgment as “sloppy and undisciplined” based the schedule of extracts published on Politicsweb.co.za. However, at that stage he had not seen the full Mpshe statement itself. In a further email to Moodie, published on the Grubstreet.co.za weblog, Seagroatt made four further criticisms of the NDPP’s decision (according to Politicsweb):

Firstly, he noted that his judgment had been overturned by the Court of Final Appeal in Hong Kong. “In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A’s decision. There was certainly room for him to do so.”

Secondly, he stated that the facts of the case he was dealing with were not really applicable to Zuma’s situation. Mpshe’s “own statement is so limited and sketchy” Seagroatt wrote, “that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first “whiff” of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage – a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it.”

Thirdly, and further to this point, Seagroatt notes that “What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available.”

Finally, Seagroatt observed, that such decisions are ones best left to a judge to decide. “It is very strongly arguable that [Mpshe] should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies.”

Having noted all of this does not mean I was not very impressed with Mr Jacob Zuma’s speech after his election as President in the National Assembly. Compared to the occasional self-important and pompous blathering of Thabo Mbeki, his speech was light, witty and humble. A good start. Maybe if he does not only talk the talk but also walk the walk, over time we will learn to forget that dark cloud hanging over his head and how the National Intelligence Agency and the NPA was abused to get him off the hook.

I am holding thumbs.

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.

Give Zuma a chance?

Mar 12th, 2009
by Pierre De Vos.
49 comments

Xolela Mangcu has an interesting column in today’s Business Day on Thabo Mbeki and Jacob Zuma, in which he argues that we should give Jacob Zuma a chance as President. (What would we do without the editorial pages of Business Day? Hopefully the rumours about its immenent demise are premature.)

As Mangcu points out:

Over the past decade we were called terrible names by Thabo Mbeki and his bloodhounds — “foot lickers of the white man”, “coconuts”, “native assistants”, “askaris”. We were banished from the public broadcaster and disinvited from many a conference. We were hounded out of our jobs because we marched to a different drum. We were called unpatriotic and plotters against Mbeki. His commandos put us down as wannabes who were only interested in meeting the president.

So bloated was Mbeki’s sense of self-importance that his acolytes actually believed the gibberish. You would have been forgiven for thinking the whole squadron was in a state of delirium. The delirium inoculated them from the reality that there were other people with minds of their own out there.

According to Mangcu he cannot be sure whether Jacob Zuma will be any different, but he is nevertheless prepared to give the new man a chance.

I attended a meeting with 100 other academics at the University of Johannesburg in which Zuma gave a clear commitment to academic freedom. Mbeki had made me so cynical about these things I kept pinching myself. . . . . And so I will give Zuma the same benefit of the doubt I gave Mbeki in the late ’90s. If he should squander that goodwill then I would be the first to let him know.

What this country needs is a wellspring of ideas that come from within its academic institutions — inspired by the experience of its people and enriched by the formful of other clever boys and girls in the land.

I have some sympathy for this view. Amongst the chattering classes there seems to be some hysteria about Jacob Zuma becoming President. As I have pointed out before, at least some of this hysteria is linked to class prejudice and the fact that Zuma is not educated and seems to be something of a traditionalist. So we would all do well to calm down and to give Zuma a chance to show that he will not only talk the talk, but will also walk the walk on everything from Aids to corruption to crime.

Can he be worse than Mbeki? Probably not.

The problem is that there are other reasons why we might be skeptical about Zuma. He is a patriarch and sexist. He is a homophobe. He befriended a crook, took millions of Rands from that crook and then did favours for that crook. This is not conjecture – we know all this from what Zuma has said himself and what has been confirmed in the Shaik trial.

Fact is that Zuma never should have been elected President of the ANC. There are far better candidates in the ANC who are not as fatally tainted as Zuma. But because Mbeki managed to scare off all the other candidates and because he fired Zuma as Deputy President, thereby freeing Zuma to campaign for the top job, it was a choice between the devil we knew and the devil we did not know.

So, I am torn. Yes, one must always give a new guy a chance to show whether he is up to the task or not. That would only be fair. But, unfortunately Zuma is ethically tainted and if we just ignore that fact we lower the standards for public morality in a most distressing way. How can we demand high public morality from our politicians when our President himself is such a deeply unethical man?

So maybe I will be a bit Budhist about this and try and hold two contradictory views at the same time. On the one hand,  in government I will give Zuma a chance and will be open to pursuasion about his concerns for the poor and his skills and getting the government to do its job. On the other, I will not forget that Zuma is an ethically deeply tainted man who needs to get his day in court to answer all the charges against him.

Questions for Chikane, Mbandla, Gumbi, Simelane, Mpshe and Mbeki

Jan 22nd, 2009
by Pierre De Vos.
88 comments

Sometimes the truth seems so blindingly obvious that one is tempted to believe that even our politicians would not be able to twist the facts to justify the indefensible – only to be reminded that politicians lie for a living and that the ordinary voter is often too lazy or stupid to care.

But let us consider this question, nevertheless: who should we believe?

Should we believe Vusi Pikoli, the man who even Frene Ginwala – old friend of Thabo Mbeki and disciplined member of the ANC – found to be a man of the highest integrity?

Or should we believe Brigitte Mbandla, the often tired and emotional ex-Minister of Justice, her Director General, Mr Simelane, who was caught lying before the Ginwala Commission, or Thabo Mbeki, a man who has a rather bizarre relationship to facts and the truth, or his Director General, Frank Chikane, who first made ringing statements about the deal struck with Adriaan Vlok before he went to the Ginwala Commission to denounce that very same deal when his boss decided a case had to be built against Pikoli?

Let us consider the evidence and probe a bit deeper into this obvious question. On the one side we have Vusi Pikoli, who told the Parliamentary Committee set up to rubber stamp the decision of President Kgalema Motlanthe to fire the National Director of Public Prosecutions (NDPP), that if the Scorpions had never investigated the murder of mining magnate Brett Kebble he would not now be suspended and required to defend himself before a parliamentary committee.

“If it had not been for the matter of Kebble I would not have this problem I am having today,” he said, adding that the decision to charge Selebi was the direct reason for his suspension. He also described as unlawful and unconstitutional an instruction from then justice minister Brigitte Mabandla that he halt the investigation of Selebi. He said both Mbeki and Mabandla had asked him to resign but he had refused as this would have allowed executive interference to triumph over the independence of the National Prosecuting Authority. “Because I refused to obey an unlawful instruction I was suspended.”

On the other hand we have the government, this time represented by the honourable Reverend Chikane who claimed yesterday that it was wrong to say that Mbeki had abused his power.

“I was there. The president did nothing to stop Pikoli from arresting Selebi.” Chikane said Mbeki had merely acted to manage any potential security fallout when he asked the head of the National Prosecuting Authority (NPA) to wait two weeks before arresting Selebi on corruption and fraud charges. “There was a great risk of something extraordinary happening to destabilise the country and it was the duty of the president to ensure the country was not destabilised.

On the face of it, the claim by Chikane cannot be squared with the claim by Pikoli. Unless, of course, Chikane had learnt a trick or two from his former boss and was twisting the truth in such a way that he could sooth his conscience while at the same time misleading the nation.

I will assume that Chikane is correct when he says that Mbeki did not order Pikoli to stop the arrest of Jackie Selebi. He did not phone his friend Selebi and asked him to come and arrest Pikoli, “finish and klaar”, because he was threatening national secuirity by having the audacity to want to arrest a friend of the President. But this does not mean that the President did not act in ways to indeed stop the arrest of Selebi.

When this case comes to court I would like to see Chikane, Mbeki, Mbandla, Gumbi and Simelane called to the stand and asked the following questions:

  • What is the relationship between Mbeki and Selebi? How long do they know each other? How much money did Brett Kebble give to the ANC? Did he give any money to Mbeki or any of his pet projects?
  • After it became clear that Pikoli was going to arrest Selebi, what did the President say to Chikane, Mbandla, Gumbi, Simelane or Mpshe about the case? Did he ask any of them (or anyone else) to take steps to ensure that Pikoli did not arrest Selebi before the Polokwane conference? If he did not, was it because he was momentarily dumbstruck or are those testifying just lying to protect their boss?
  • Why did Simelane write the letter illegally instructing Pikoli not to arrest Selebi and why did Mbandla sign it? Was there any link between this letter and anything the President or his staff told Simelane or Mbandla? If not, why has Simelane and Mbandla not been arrested by the police for this illegal interference with the NPA? Why were they not immediately fired by the President for issuing this illegal order?
  • If Mbeki did not do anything to stop the arrest of Pikoli, why was Pikoli suspended by the President on a public holiday and only a day before he was going to execute the warrant for Selebi’s arrest? 
  • If Mbeki, as his underlings and Ginwala have claimed, was concerned about the national security implications of Selebi’s arrest, and if Mbeki had not tried to stop that arrest, why on earth did he not try and stop the arrest? Surely, if there was really a national security concern and if he thought he had a duty to act to protect the country, then he would have made sure that Selebi would not be arrested – otherwise he would be in dereliction of his duties as President? Please explain this contradiction.
  • After Pikoli’s suspension and the appointment of Mokotedi Mpshe as NDPP, what was said by Mbeki, the Minister or anyone else to Mpshe about the arrest of Selebi? Who gave the instruction to Mpshe to cancell the arrest warrant? Surely it must have been on instructions from the President that this instruction was given – otherwise, how does one explain the involvement of Gumbi and Simelane in the drafting of the letter to request the cancellation of the arrest warrants? Or did these officials act without instructions from the President and if so, why have they not been fired?
  • Why did the Presidency give conflicting reasons for the suspension of Pikoli? Was it incompetence or was it because they discovered that the original reason for the suspension could not be justified, so they had to cook up some new reasons ex post facto? Either way, why were they not all fired for this dishonesty/incompetence? Was it because they were acting on instructions from Mbeki?
  • Even after he was fired as President, Mbeki maintained that he had not seen any evidence of wrongdoing by Selebi, despite the fact that Pikoli had provided the President with all the information he requested – the same information that prompted an indepndent panel of experts to conclude that a strong case exists against Selebi. So was Mbeki lying when he said repeatedly that he had not seen evidence to implicate Selebi? If he was not lying, what was he smoking at the time?

A skilfull cross-examiner will have a field day with all these witnesses and I will take a bet of R1000 with anyone that under cross-examination it would become clear that Mbeki and all his underlings are lying through their teeth about this matter. Pikoli was suspended because he wanted to arrest Selebi – finish and klaar.

Why Mbeki and his underlings are spreading these “deliberate falsehoods” are beyond me. If there was good reason to suspend and fire Pikoli to protect the national security, then surely Mbeki and his underlings should all be admitting that Mbeki suspended Pikoli to ensure that Selebi was not arrested because then Mbeki would just be doing his job.

The fact that they are all denying this blindingly obvious fact can only mean one thing: they are not telling us the truth. But parliament cannot afford to face this fact so Pikoli is toast.

Barack Obama = America = patriotism?

Jan 18th, 2009
by Pierre De Vos.
31 comments

I visited Kansas City this weekend. I did not see Dorothy from the Wizard of Oz, but everywhere I went the name Barack Obama was on people’s lips – even in Kansas, one of the most conservative states in the US. On TV talkshows, in Diners over breakfast, on the news, in the New York Times and on National Public Radio, the excitement about the inauguration of Obama as 44th President of the United States took centre stage.

Well, I did have to turn the dial of my car radio past the country and western music (“the bank is coming for my house/ and my wife is gone, gone, gone…”), past charlatan preachers who told me that Jesus would save me if I only sent them a few dollars (because the scriptures said so), and Rush Limbaugh type talkshow hosts complaining about the “communist” Obama taking over while seemingly patriotic Americans were stupid enough to cheer him on.

What’s interesting from a South African point of view, is that all this excitement about Obama’s inauguration is wrapped up in a weird (but, dare I say, wonderfully uplifting) kind of non-partisan patriotism. Even Tiffany’s – the company that sells very expensive jewelery to rich people who probably voted in droves for John McCain – had an advertisement today in the New York Times  of a bejewelled American flag to celebrate the inauguration. (How tacky. How American. How wonderful.)

Now, I am one of those people who think that patriotism (like “national security”) is the last refuge of scoundrels. Yet, there is something touching about a nation so caught up in the historic moment that most of its citizens would set aside their personal politics to revel in the moment.

It feels a bit like the days after the 1994 election that led up to the inauguration of Nelson Mandela as President of South Africa. Suddenly it was cool to wave the (then new) South African flag. Not a day went by in those first weeks and months of our shining new democracy that I did not choke up with the emotion of this momentuous change.

Sadly (but probably inevitably) those days are long gone. I am not going to cry when Jacob Zuma is inaugurated as our fourth President later this year – unless I shed tears of anger and worry. Maybe this means South Africa has become a more normal society. After all, the present mania in the USA stems from the fact that a black man was elected President – something that did not seem possible in the abnormal world of American racialised politics, bedevilled by a history of Slavery and abominal discrimination.

I am sure some ANC supporters would say the fact that some of us (black and white) fellow South Africans will not get emotional when we see Jacob Zuma doing a little Umshini wam dance at his inauguration, just goes to show that we are evil, partisan, racist colonialists who hate Zuma because he has more than one wife and because we think he is either very stupid or very blind because after all these years he still can’t find his machine gun. 

But I am not sure that would be fair. After all, Barack Obama’s financial advisor is not spending 15 years in jail for bribing him and for soliciting a bribe on his behalf. Barack Obama has not been charged (but acquitted) of rape. Barack Obama does not brazenly change his political message depending on who he talks to. (Although he has sometimes changed his positions – he has just been far more clever and agile at doing it.) Barack Obama and his surrogates have not threatened judges or called them names. Barack Obama does not mention that absurd beast called “the national democratic revolution”.

And, let’s face it, Barack Obama can give brilliant speeches – yes he can – while Zuma is about as inspiring as a slightly drugged dentist talking about false teeth when he gives a speech.

Why is it that – after Mandela, to whom Obama has been repeatedly compared on TV here – we have elected such uninspiring leaders? Listening to Thabo Mbeki speak was a bit like watching black paint dry in a darkened room. And when Zuma is not singing and dancing, but reading a prepared speech, he makes Mbeki seem exciting and inspiring in comparison.

Perhaps it is because we do not elect our leaders directly that we have ended up with such duds. (In the UK, where the party elects leaders as well, they had John Major, Margareth Thatcher and now Gorden - ”funny-slack-mouth” – Brown.) A few thousand ANC hacks elect our leader every five years (or in the case of Mbeki, we do not really know who elected him because he was made ANC leader in a backroom deal).

Is that a good thing or a bad thing? I think the jury is out on the answer to that question. Uninspiring leaders can be a good thing because that means we might avoid the cult of personality that might tempt leaders to overstay their welcome. If Mbeki was truly inspiring he would have been re-elected at Polokwane en we would have been stuck with that disaster of a man. That is why I am not sure I like Cope’s proposal for the direct election of our President.

But I do miss having a leader I can be proud. I miss a leader that might inspire us to do a bit more than avoid time in jail, that will inspire us to do more than try and make money to drive bigger cars and get niftier cell phones. But maybe it is a small price to pay – having boring or corrupt leaders – in order to prevent our leaders from becoming such cult figures that they will be tempted to hang around until they have truly ruined the country.

So on Tuesday I will probably get all emotional, and for a few hours I will yearn for our own Barack Obama to emerge in South Africa. Then I will thank my lucky stars that I live in a country where our leaders are so obviously flawed that we can laugh at them, and ridicule them, and not take them that seriously at all.

Because as long as we continue laughing at them, we will not fear them. And as long as we do not fear our leaders, we will never become another Zimbabwe, another apartheid South Africa, or another Nazi Germany. 

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.

SCA provides common sense interpretation of section 179

Jan 12th, 2009
by Pierre De Vos.
126 comments

It is always nice when one is proven to be correct. After the Nicholson judgement, some readers of this Blog issued rather cataclysmic condemations of myself and others and suggested that we were stupid and uninformed for having predicted that section 179 of the Constitution (read with the relevant sections of the NPA Act) did not give Mr Zuma the right to make representations to the acting head of the NDPP before he was charged.

Now I see the SCA decision entirely agrees with the approach advocated by myself and others. Apologies from all those who impugned my integirty might be in order. But I am not holding my breath.

As the SCA pointed out (and as I have consistently argued) the power to review, set out in section 179 of the Constitution, can only be an ‘apex’ function. In other words, it can only be a function of the head of the NPA as head of the NPA. Section 179(5)(d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. The SCA then continued:

Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph thatthe provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.

As is clear from the structure of the Constitution, the underlying purpose of the provision in section 179(5)(d) is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. According to the SCA, it would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions.

This section was therefore wrongly latched onto by Mr Zuma’s lawyers. If they thought his rights had been infringed, they should have relied on section 35 of the Constitution. But of course the rights in section 35 only comes into play once a person actually stands trial and the last thing Mr Zuma wants is ever to stand trial – so they had to clutch at straws like this to try and keep their client from facing the very serious and credible charges on which basis Schabir Shaik is already sitting in jail.

The judgment of the SCA represents a stunning victory for the NPA as it also vindicates the much maligned decision by the NPA to ask for a striking out of passages from Mr Zuma’s papers in which he mutters darkly about the political conspiracy, which Harms (for a full bench of judges from the SCA) calls “completely irrelevant”.

Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes. An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.

So, does the SCA judgment also represent a vindication of Thabo Mbeki? To some degree it does, because it found that the reasons for which he was fired – namely findings of a political conspiracy to prosecute Mr Zuma – was wrongly decided by Nicholson. Mbeki was therefore fired for reasons now rejected by the SCA.

At the same time the SCA – unlike cowboy Nicholson – is careful to point out that it does not have sufficient evidence to make a finding on a political conspiracy and in any event even if it did, this would not be relevant for the case brought by Mr Zuma. The judgment will thus be read by many as a rejection of the political conspiracy findings of Nicholson J – but such a finding is not made because the court said it was not proper for it to delve into these issues. We still do not know definitively whether such a conspiracy existed or not. If we follow the logic of Mr Zuma and his backers (“innocent until; proven guilty, remember!) we cannot find the NPA and Mbeki guilty of this conspiracy because they have not been found by a court of law to have engaged in such a conspiracy.

It will be interesting to see how the ANC and Mr Zuma react to the judgment. Are they now going to resurrect the rhetoric of counter-revolutionaries? Can they afford to do that with an election coming and COPE breathing down their necks? Given the fact that they embraced the Nicholson judgment and said much about their respect for the judiciary an attack on the SCA will come accross as the most callous and opportunistic kind of political move. Surely even the Gwede Matashe’s of the world are not stupid enough to throw away their last bit of credibility with the thinking population of South Africa? Now, Julius Malema on the other hand . . .

PS: This post was slightly edited. I am travelling in the USA and had to type it rather fast so there were many typos. Apologies.

Mugabe, Mbeki, murder

Dec 22nd, 2008
by Pierre De Vos.
34 comments

In the letter written by ex President Thabo Mbeki to the ANC after he was fired as President he listed Robert Mugabe – who pretends to be the legitimate President of Zimbabwe – as one of the heroes he has had the honour to interact with. Can one tell the quality of a person by his or her heroes? Probably yes.

So when the New York Times reported this morning that a new survey has found that hunger is wide spread in that country, I could not help but wonder what Mbeki would say to this. The report states:

The survey, recently provided to international donors, found that the proportion of people who had eaten nothing the previous day had risen to 12 percent from zero, while those who had consumed only one meal had soared to 60 percent from only 13 percent last year.

For almost three months, from June to August, Mr. Mugabe banned international charitable organizations from operating, depriving more than a million people of food and basic aid after the country had already suffered one of its worst harvests.

Mr. Mugabe defended the suspension by arguing that some Western aid groups were backing his political rival, Morgan Tsvangirai, who bested him at the polls in March but withdrew before a June 27 runoff. But civic groups and analysts said Mr. Mugabe’s real motive was to clear rural areas of witnesses to his military-led crackdown on opposition supporters and to starve those supporters.

Can one remain a heroe if one has contributed so starkly to this state of affairs? Apparently one can if one inhabits the moral universe of Thabo Mbeki. Thank goodness we are rid of him.

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