Spy Tapes Let Zuma Off the Hook
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8 April 2009: Spy Tapes Let Zuma Off the Hook
What do Richard Nixon, Rod Blagojevich and Leonard McCarthy have in common? All three leaders have been betrayed by tapes that have placed them squarely in the public centre of national controversy, which in turn has mired the legacies of their careers. When South Africa’s Acting National Prosecuting Authority (NPA) head, Advocate Mokotedi Mpshe, effectively exonerated African National Congress (ANC) President Jacob Zuma of multiple criminal charges this week by dropping all of them, the lid of Pandora’s box flew open.
Since reports of the alleged existence of incriminating tapes, that it was suggested might hamper the NPA’s prosecution, surfaced a couple of weeks ago interested parties have been on tenterhooks wondering what the tapes revealed and how this would impact on the NPA’s case. Now that the charges against Zuma have been dropped, the impact of the tapes is clear. But what is less clear is the how and why of the NPA’s decision to simply drop 16 serious criminal charges (covering corruption, fraud, racketeering and money laundering), effecting a stay of public prosecution for Zuma, despite continued claims that the merits of the case are strong.
Mpshe communicated that the NPA could no longer continue with its prosecution of Zuma because an “abuse of procedure” was committed by former Scorpions boss Leonard McCarthy and former National Director of Public Prosecutions Bulelani Ncguka. According to the tapes submitted by Zuma’s defence counsel, McCarthy and Ncguka discussed on more than one occasion whether to re-charge Zuma before or after the ANC’s December 2007 Polokwane Conference, on the basis of what would cause the most political damage to Zuma. “Using one’s sense of justice and propriety as a yardstick by which McCarthy’s abuse of the process is measured, an intolerable abuse has occurred, which compels a discontinuation of the prosecution,” he said.
The implication of Mpshe’s decision does two things that may undermine the principles of transparency and openness, although at first glance his decision seems reasonable as it is based on sufficiently plausible legal grounds. Firstly, the “abuse” by McCarthy and Ncguka seems to have been blown out of proportion in light of the fact that South Africa’s President-In-Waiting has still not had his day in court. One may be forgiven for thinking that Mr Zuma and his legal team have in recent months sought to avoid having their day of court for fear that the merits of the case would possibly have been proven beyond reasonable doubt.
Secondly, Mpshe went to great pains to articulate how open and transparent the NPA wanted to be with the public and that it was for this reason that he had taken a decision to declassify the tapes submitted by Zuma’s legal team. “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,” he said.
After a fairly lengthy description and exploration of the “difficult and painful process of dealing with allegations that the case of Mr Zuma [was] affected by manipulation and abuse of process” Mpshe read selected passages of transcripts of telephone conversations between McCarthy and Ncguka, expletives and all. However, it should be noted that these were selections. How can the South African public be sure that Mpshe’s selections give an accurate picture of the content of the conversations held? Further, how can the South African public be sure of culpability and involvement of others potentially omitted from the selections chosen by Mpshe? As the tapes have not been heard in their entirety by the nation, without full context, how is it possible to draw conclusions on the basis of a selection of the evidence presented?
While the permanent stay of public prosecution lifeline that has been thrown to Zuma should put the nation back on an even keel, it is doubtful that this will be the outcome. Politics is well known to be an arena that is dynamic and unforgiving. Citizens understand that the fighters in the ring of politics don’t always play by the rules and at times are prone to dirty tricks, even in a democracy. The pitch of such enthusiasm is often heightened ahead of a national general election.
The quandary presented by the NPA’s ruling is that instead of dissipating the cloud of suspicion over Zuma’s head, it has served to thicken and stultify this cloud. The fact remains that until Zuma has his day in court, which after the NPA’s announcement is now pie in the sky, the question mark that has hung over his head these last 8 years will remain a heavy spectre for the foreseeable future.
It would be unfortunate if the apparent overzealousness of McCarthy and Ncguka deflected from the fact that there might be compelling evidence that Jacob Zuma and others benefitted materially from the Arms Deal. Going forward it is unlikely the NPA will be able to bring anyone to book for the Arms Deal without inviting a barrage of criticism from the new ANC administration, expected to take office after the April 22 election. And perhaps this is the final trump card of the formidable Zuma legal strategy. In this light, the lay person may be forgiven for viewing the tapes presented to the NPA as a stroke of legal genius.
The lay person may further be forgiven for thinking that by presenting these tapes, that implicate the NPA in the political conspiracy that has been alluded to for years, Zuma’s legal team backed the NPA into a tight political corner. Indeed, the legal technicality presented to the public to explain the dropping of the charges, was perhaps an in-genius backstroke that has resulted in a politico-legal stalemate, palatable to the parties concerned. Is it mere coincidence that both Bulelani Ncguka and Leonard McCarthy are no longer in the employ of the NPA and the (now-defunct) DSO, therefore deflecting some responsibility from the current prosecuting authorities?
Whatever conclusions the lay person may jump to, it certainly seems that there are further questions that have arisen from the NPA’s decision. These include: Is the situation that Zuma will never have his day in court satisfactory considering Zuma will in all likelihood be sitting in the Union Buildings in a few weeks? What type of democratic values have South Africa’s leaders been instilling, this last decade? To what degree do the tentacles from Luthuli House (of the past, present and future) reach into the organs of State and business encircling them within an impenetrable nexus?
But perhaps the answers to these questions are irrelevant if the collective national psyche can be relieved of the constant battles that have raged in the public domain for so long.
Poppie Mphuthing, Researcher, Crime Justice and Politics Programme, ISS Tshwane (Pretoria)
