NPA Statement on Zuma

See the NPA’s full statement, announcing dropping the charges here.

Public confidence in the integrity of state institutions demands that assurance is clearly given that withdrawal of charges is founded on sound legal principles, and is not based on any misplaced desire to limit damage to either the NPA’s or Mbeki’s reputation, or on undue pressure by a powerful individual. This saga has indicated that, even at this stage, that our democratic institutions remain fragile, and only as robust as those who lead them.

Statement by the National Director of Public Prosecutions…
I stand before you today to announce the most difficult decision I ever made in my life. It was not an easy task at all. I had the privilege of having listened to inputs and comments of very eminent jurists of the NPA and I am thankful to them for their candid and frank arguments.
It was then and it still is difficult for me to comprehend that which is set out below could have happened. The painful facts that I am about to put before you have serious implications for the integrity and independence of the NPA especially regarding the prosecution of Mr Zuma.
We believe that it is vital that the NPA must expose this conduct and deal with the consequences as honestly and constructively as possible if it is to have any chance of rebuilding its credibility and integrity. Our democracy will have to find ways to learn from this bitter experience and to build a stronger and more independent NPA.

See the NPA’s full statement, announcing dropping the charges here.

See political parties response to the statement:

COPE
DA
IFP
ID
UDM
FF+

This article first appeared, before the NPA statement,  in the Cape Times, Friday, 03 April 2009.

Whether or not the National Prosecuting Authority (NPA) decides to drop the charges against Jacob Zuma, there will be no winners in this prolonged saga.

The salient questions for the NPA are whether the evidence of political interference is so great and so material that it would harm the prospects of a fair trial for Jacob Zuma and also whether such interference has so tainted the matter that the actual case against Zuma becomes almost moot. Due consideration is being given to these matters now, based on new information allegedly submitted by Zuma’s legal team to the NPA as part of his representations in support of his request that the NPA consider withdrawing charges against him.

The information the NPA has is variously said to include either tape recordings or transcripts of tape recordings of telephone conversations which are allegedly indicative of ‘blatant executive interference’ and ‘collusion’ between the executive and the NPA, and which have the effect of compromising, or even fatally undermining, the NPA’s case against Zuma.

While the considerations before Acting National Director of Public Prosecutions, Mokotedi Mpshe, are legal, the political considerations are equally, if not more so, overwhelming and fraught. Whatever the NPA’s decision, it will have to convince the public that it has come to such conclusions without fear or favour to anyone. This is going to be tricky given the politicization of the matter on all sides.

Legally-speaking, a primary concern for the NPA must be the reliability of the actual contents of the alleged recordings – are they an accurate record of actual discussions? Tape recordings are notoriously capable of tampering and selective editing, which is why courts treat their probative value with great caution. It is therefore important to ask whether the NPA has access to expert technical verification of the integrity of the recordings. It would be inadequate to rely on notes made after listening to recordings in possession of Zuma’s attorney.

In addition, the NPA must assess the legality of the recordings, and of their possession and use by Zuma. Before the NPA can take account of the tapes’ contents, therefore, it may have to make further enquiries, such as asking the Inspector-General of Intelligence or the Acting National Commissioner of Police to investigate whether the recordings were made legally, in terms of a court order issued in terms of the Regulation and Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002.

Finally, and most importantly, the NPA must assess the significance and potential impact of the contents of the recordings. Do the recordings, as reported, amount to successful interference in the independence of the state institution entrusted with the responsibility of assisting the courts to adjudicate guilt and innocence?

And was that interference so serious as to affect the merits of the prosecution’s case against Zuma, by fatally undermining the NPA’s credibility, regardless of the strong prima facie evidence it says it has? Further, has that interference seriously affected Zuma’s prospects of a fair trial?

Is it relevant, for example, that then-President Mbeki may have asked that any the announcement of any charges against Zuma be deferred until after the ANC’s December 2007 Polokwane conference? Or that Mbeki allegedly supported McCarthy’s appointment as head of the anti-corruption unit at the World Bank, despite Parliament’s Joint Standing Committee on Intelligence recommending action against McCarthy for his role in the DSO’s Special Browse Mole Report?

Or do the recordings represent no more than normal interactions, such as briefings of the President by the NPA or DSO on the status and progress of the investigation?

It is accepted standard practice in high-profile national investigations for the NPA to regularly brief the Presidency on progress and significant developments. It emerged during the Ginwala Enquiry into the suspension of then-NDPP Vusi Pikoli, that Pikoli was required to keep President Mbeki informed, during extensive and frequent briefings and discussions, about the progress of the NPA’s investigation of now-suspended National Police Commissioner Jackie Selebi.

It was also the Presidency’s case, and the ANC’s case in the parliamentary enquiry into the President’s decision to dismiss Pikoli, that the President was within his rights to insist that Pikoli defer his arrest of Selebi. Were the alleged interactions between Mbeki, Ngcuka and McCarthy qualitatively so different as to amount to interference in the Zuma matter, but not in the Selebi case?

It bears asking whether, even if the recordings do carry such significance, this would oblige the NPA to withdraw charges? The SCA in January this year held that an improper motive alone would not render unlawful an otherwise appropriate prosecution of Zuma. If it is argued that it is appropriate for the NPA to rely on possibly tainted evidence to withdraw charges, would it be appropriate for a court to exclude the NPA’s evidence because it may have complied with executive pressure to, first, not press charges against Zuma and, then, to delay reinstituting them?

A court of law might well be the forum best equipped to decide these many contentious questions of evidentiary value and credibility, including the alleged executive attempts to interfere with the NPA’s affairs. The argument has been made elsewhere that any allegations of attempts at executive interference in the investigation or prosecution of Zuma, and of illegal recordings, should themselves be investigated and possibly prosecuted, rather than leading to the withdrawal of charges against Zuma. If the NPA declines to withdraw charges, Zuma would be at liberty to apply to court for a permanent stay of prosecution, presenting any evidence he may have of executive interference.

If the NPA withdraws the charges, as it currently appears they may, maximum transparency will be needed, along with detailed reasons for such a decision. Secrecy would merely serve to feed the perception amongst some that Zuma is being treated preferentially because of who he is. Despite the agreement between the NPA and Zuma’s team regarding the confidentiality of his representations, including the alleged recordings, there are good grounds to require that the NPA publicly give detailed reasons for any decision not to prosecute Zuma.

Public confidence in the integrity of state institutions demands that assurance is clearly given that withdrawal of charges is founded on sound legal principles, and is not based on any misplaced desire to limit damage to either the NPA’s or Mbeki’s reputation, or on undue pressure by a powerful individual. This saga has indicated that, even at this stage, that our democratic institutions remain fragile, and only as robust as those who lead them.

Whatever the NPA’s decision and whenever it is announced, this experience has shown us, if nothing else, that there are serious cracks in our democratic edifice. These pose a significant threat to the future trajectory of our democracy. Who will provide the political leadership to ‘fix’ this is not immediately obvious, for there are few in this saga who remain unblemished or neutral.

Judith February is Manager of Idasa’s Political Information and Monitoring Service.

Gary Pienaar is a senior researcher with PIMS.

This article first appeared in the Cape Times, Friday, 03 April 2009 on page 9.

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