As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP