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.
When President Jacob Zuma was still being investigated by the National Prosecuting Authority (NPA), his supporters often claimed with some conviction that there was a conspiracy against him. Although they never claimed that the evidence – on which basis his then financial advisor, Schabir Shaik, was convicted of bribing him – was in fact fabricated, they did claim that the NPA were being abused by President Thabo Mbeki or those close to him to neutralise Zuma politically.
Although no hard evidence exist about the alleged abuse of power, circumstantial evidence suggest that there may very well have been some political interference in the NPA, first to ensure that Zuma was not prosecuted, then to ensure that he would be prosecuted and then finally to have the charges against him dropped.
After all, Shaik, who has recently risen like Jesus from his death bed (perhaps with the assistance of Goji berries), was prosecuted while Mr Zuma was at first not prosecuted. Later Zuma was prosecuted while many others implicated in the arms deal scandal (include Shaik’s brother Chippy) were not pursued.
When charges were dropped against Zuma after edited snippets of illegally obtained transcripts of telephone conversations between the head of the Scorpions and a former National Director of the NPA were submitted to the NPA by Zuma’s lawyer, many Zuma supporters demanded that the alleged abuses of power by NPA be investigated. The SACP, for example, demanded that:
One of President Zuma’s key supporters, Mathews Phosa, made a similar demand. As the Mail & Guardian reported at the time, Phosa said:
“I call on the NPA to immediately institute an objective review, not a witch hunt … in cases within which similar actions might have negatively impacted on the rights of innocent South Africans,” Phosa told a breakfast hosted by the Progressive Business Forum at Gallagher Estate in Midrand.
“There exists a strong perception that Mr Zuma is not the only victim of this vicious, vicious misuse of power and authority, and this perception should be clarified forthwith,” Phosa said. He appealed to South Africans to “move on” however he added that in order to move forward as a nation the country could not “sweep the misuse of power under the carpet”.
I was therefore shocked when President Zuma said during his disastrous interview on ETV last week that he would not call for any investigation into a claimed abuse of power within the NPA relating to the corruption case against him. He claimed that as he was involved in the case it would not be proper for him to make any decision on an investigation and tried (rather clumsily and in an embarrassing manner) to pass the buck by saying that this was not his problem but the previous President’s problem: “These are the questions you should have asked the president then.”
A few questions arise from this response.
First, when will the SACP and Phosa issue angry statements condemning President Zuma for wanting to sweep the alleged abuse of power by the NPA under the carpet? Will Phosa and Blade Nzimande resign from the cabinet in disgust at this implicit condonation of abuse of power by the NPA? If they do not, would we be justified in concluding that they have no principles?
Second, why has the President now decided not to have the charges of an abuse of power by the NPA investigated? Surely, as President, he should be concerned about such things and about the possible breaking of the law? Might it be because he had purported to appoint Menzi Simelane as NDPP and thus now believes that Simelane will protect him and do his bidding (as Simelane has himself said he would). Does the President now believe that the alleged abuse of power by the NPA is not such a bad thing – as long as it occurs to protect him and his supporters and not to prosecute him?
Third, if the President really believes, as he claimed, that he cannot order an investigation because he was personally involved in the case of alleged abuse of power by the NPA, how come he then appointed Simelane as NDPP? Should he not have recused himself from making a decision about who should serve as NDPP, seeing that Simelane might well still be involved in a decision about his case? Will he apply the same principle that he has now enunciated when he is called upon to decide on granting a pardon to the man who was convicted of bribing him and if he would not, would we be justified in concluding that our President has no principles whatsoever?
Lastly, if the President really believes that his government should not or cannot take any action regarding anything that happened during the time of a predecessor (as he claimed on ETV), how on earth would his government ever be able to correct the mistakes of the previous government? Surely he was elected at Polokwane exactly to correct the mistakes of the Mbeki era? Now he claims his government cannot deal with something that happened under Mbeki, which seems like an extraordinary abdication of responsibility. Does this mean he is fundamentally reneging on the promises made to all the delegates who voted for him at Polokwane?
It seems to me some kind of inquiry into the alleged abuses of power by the NPA is drastically needed so that we can find out – as the SACP rightly said – whether such abuses did occur and (perhaps more importantly) how we can prevent such abuses from happening again. Without an investigation trust in the NPA would not be restored.
The reluctance of the President to launch such an independent investigation will give credence to the views of those who believe that the “abuse of power” claim was something cooked up by Zuma to avoid the fate of his former financial advisor. It will also leave South Africans with the serious worry that Zuma might not in principle be opposed to the abuse of the NPA for political purposes, and that he will engage in the same kind of abuse of the NPA that he accused former President Mbeki of.BACK TO TOP