Zuma – More Questions Than Answers

– By Judith February –

The charges against Jacob Zuma have been dropped and we are all being urged to ‘move on’.  It is now abundantly clear that what we have witnessed over the past 8 years has been the ANC’s inter-necine battles simmering underneath the genteel edifice of our Constitutional democracy. It makes a change from the shifty backdrop of exile but the cloaks,daggers and the actors remain fairly similar.

While the ANC and its alliance partners celebrate however, we have been left with more questions than answers and greater uncertainty about the man who would be the next president of the Republic.  For despite what Zuma told the crowds this week, Mokotedi Mpshe’s decision has not been a finding on his innocence. 

In fact,  Mpshe stated categorically that Zuma has a case to answer, that the merits of the case against him still stand but because of an extreme abuse of process the prosecution cannot continue.

The prima facie evidence of an abuse of process is there. The transcripts furnished seem to indicate this, although what is quoted and declassified is selective, which, incidentally, raises serious concerns about their probative value. No matter the political gymnastics, the legal position is clear. Judge Louis Harms in the Supreme Court of Appeal has held that even if the motive for a prosecution was wrongful, it does not affect the actual merits of the case itself and does not mean a prosecution cannot be brought. The NPA has chosen to ignore that however, in the name of political expedience.  There can be no other conclusion, given the tenuous legal reasoning which Mpshe set out on Monday and his specific lack of finding on the merits of the case against Zuma.

Apart from the legal considerations for dropping the charges against Zuma, there is also another dangerous argument gaining traction amongst some opinion-makers and analysts. It goes something like this: it is the middle-class ‘lynch mob’ who wants Zuma charged, if only to prevent him, as a traditionalist, non-intellectual from ascending to the Presidency. The case against him was a trumped up one driven by middle-class interests, the argument continues. So, any proof of a conspiracy means ultimately that the charges must be dropped.

Such a theory makes little sense. Our Constitution must be the starting point of all our deliberations. It requires that everyone acts within the law and that everyone, no matter their status, is subject to the law and entitled to equality before the law. It is on those principles alone that the NPA, if convinced of wrongdoing by others, should have charged Zuma and others involved in wrongdoing. Time will tell whether Ngcuka and Mccarthy will be charged.
The rule of law cannot be selectively applied nor can it be applied in half-measures. And more importantly, the rule of law is not a ‘middle-class’ nicety but rather a fundamental pillar of any functional society and operates to protect those most vulnerable in our society.

Gwede Mantashe, ANC secretary-general spoke at length, after the announcement, of Zuma’s ‘persecution’ and the fate he suffered as an accused. Would that Mantashe and the ANC spared similar thoughts for the millions of people – ordinary South Africans- who daily have to interact with our dysfunctional criminal justice system. Their stories would perhaps shock Mantashe. Missing dockets, corruption, lack of resources, lack of legal representation and  poor conditions for those awaiting trial. That the plight of a single individual can be so  elevated, should serve as a warning light for us all. What the ANC has done and what the NPA has, regrettably reinforced, is that there are some, because of who they are, who are more equal than others.

So, the legal battle may be over for Zuma but the cloud of ‘the case to answer’ will forever dog his presidency. Wherever he goes, his integrity will be questioned. Meanwhile, ‘we the people’ need to be asking serious questions about our intelligence agencies and our prosecuting authority. The rot is quite obviously deep. The interests of party and state have become so blurred that it’s hard to separate the interests of the ANC from the interests of the country. How we move on and pick up the pieces remains unclear. Simply moving on is not an option. For what we cannot now afford is a Zuma presidency which itself chooses to selectively prosecute those involved in the conspiracy against him. For South African institutions to survive this chapter, political leadership will need to be
even-handed and justice seen to be done.  Nothing less than a judicial commission of enquiry into the arms deal and related matters can bring these matters to a close. In that way, there can be no compromise, no secret deal-making and no compromises; just the plain truth.

That is the only satisfactory outcome to this sorry saga. But can we realistically see Zuma as president setting up such a commission when he has not been cleared of corruption related to the matter? And herein lies the unfinished business which we will take with us after April 22nd. Mpshe and those around him who acquiesced to this decision will be remembered, not for their pragmatism, but for selling us all short and for succumbing to pressure when the country needed dispassion and principle most.

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