7 April 2009

South Africa: The NPA's Call Just Scrapes Home

Johannesburg — BY THE narrowest of margins, but by a margin nonetheless, the National Prosecuting Authority (NPA) did enough yesterday to justify its decision to drop its charges against African National Congress (ANC) president Jacob Zuma.

In doing so, however, it may have spared Zuma a trial, but it has damned him and the ANC to the enduring hell of suspicion and doubt. The acting NPA boss, Mokotedi Mpshe, went out of his way at the start of his announcement to make clear that on the substantive merits of the case against Zuma he had heard nothing which, in his words, would "militate against a continuation of the prosecution". South Africans can take comfort in that, even as many will question the wisdom of the decision Mpshe finally arrived at.

For even as he was setting Zuma free, it seems to us that Mpshe was planting a cancer in the coming Zuma presidency. Zuma faced 16 charges of fraud and corruption and racketeering arising from his relationship with convicted fraudster Schabir Shaik. They involved more than 1000 payments to Zuma by Shaik of more than R4m as Shaik tried to enlist Zuma's support for his business ventures and, as the Shaik trial clearly demonstrated, with considerable success.

Zuma is not innocent of those charges, as he and his supporters will now claim. He is merely not legally guilty of them. But they will dog him for the rest of his life. Because you are not prosecuted for taking a backhander, it does not mean you didn't take the backhander. By escaping prosecution for corruption on a technicality, Zuma is going to have a dreadful time convincing all but the most doting follower that his promised war on corruption in government is indeed a serious proposition. The effect on the country will be more cynicism and less commitment.

That said, it would be wrong not to measure the positive effects of the NPA decision. It removes an issue from South African life that was threatening to consume the entire body politic and is thus a considerable relief to the whole nation. Even had the NPA not dropped the charges, it is quite likely, given the evidence Mpshe presented yesterday, that a judge in any trial of Zuma would have thrown the case out. So we have been spared the time and agony between now and then.

It also removes the main weapon with which Zuma and the ANC have been able to fight off opponents -- Zuma's victimhood. Free of the charges, it will be easier from now to judge him for what he does rather than for what is being done to him.

But what a technicality! Mpshe released a string of transcripts of recordings of phone calls and SMS exchanges made just before and just after the historic ANC conference at Polokwane in December 2007. It was at this conference that Zuma defeated former president Thabo Mbeki for the leadership of the ANC.

Mbeki had stood, against the advice of many, including this newspaper, for a third term as party leader, and was intent, once he won, to ensure the elevation of his deputy, then deputy president Phumzile Mlambo-Ngcuka, to the presidency while he ran the party -- it being accepted that the government does the bidding of the party.

The transcripts make it clear that Zuma's contention that he was a victim of a political conspiracy were well-founded. And they feature two main protagonists -- one is the former head of the Scorpions (the DSO, the investigating arm, now being disbanded, of the NPA) Leonard McCarthy and the other is Mlambo-Ngcuka's husband, Bulelani Ngcuka, a former head of the NPA and now a businessman.

To say that McCarthy and Ngcuka were conspiring would be an understatement. The recordings show their matter revolved around when to recharge Zuma -- before or after the Polokwane conference. There was a debate about this in the Mbeki "camp" at the time. If you charged Zuma before the conference would you not provoke support for him? Other people around Mbeki wanted him charged before the conference. Here's a sample, from an intercept dated December 12 2007, about four days before Polokwane:

Ngcuka : "As long as you don't do it this weekend."

McCarthy : "If we hold back, it will be because clever people like you and others are saying to us that the country needs cool heads, but I would hate to be wrong later."

Ngcuk a: "Just don't do it this weekend."

McCarthy : "It might change."

Ngcuka : "I can't keep an open mind. You can't do it this weekend. Our minds won't change."

Our minds? It is safe to assume that at this time Ngcuka was seeing rather a lot of Mbeki's deputy, and it can reasonably be assumed that she would not be misrepresenting her boss's thinking in their dinner table or pillow talk. Ngcuka was clearly giving the chief investigator in the Zuma case instructions, and it is not unreasonable to assume he would have known that Mbeki at the very least approved of them.

It is understandable that opposition parties, just a few weeks away from a general election, have been angered by the decision to drop charges. And it is true that Mpshe could just as easily have gone to court with his case. Even had he known the tapes would be brought up by the Zuma defence, it might have been worth it to have heard McCarthy and Ngcuka under cross-examination.

With any luck, they would also have called Mbeki, who could have explained many of McCarthy's references in other calls to "the man" or the "number one". In one voicemail after Mbeki lost Polokwane, McCarthy says that he "saw the man on Friday evening, we are planning a comeback strategy and once we have achieved that we will clean up all around us, my friend".

But if McCarthy and Mbeki were even then planting the seeds of a new political party as they plotted a legal way forward against Zuma, it is unlikely a judge would have allowed the case to continue in the face of such blatant evidence of procedural malfeasance. Yes, Mpshe could have decided to press ahead with the charges, but it is quite likely he would have lost in court.

No doubt McCarthy's role in this sorry affair will be investigated. He now works in an anticorruption role at the World Bank. Ngcuka was not a public servant at the time the recordings were made. He is probably in the clear, though he may require extra personal security following yesterday's revelations by Mpshe. Quite how the intercepts were made and how they ended up in the hands of Zuma's team is also worthy of investigation.

But the next chapters in this story are Jacob Zuma's to write. He has escaped prosecution and been proved right about the conspiracy against him. He will feel vindicated, and it would be churlish not to congratulate him. He will be this country's fourth democratic president, and he might be a very good one. We will know in five years. During that time there is a mountain of work to do. SA is coming apart at the seams, and it must be fixed. That job can be done only by a strong, confident leader surrounded by clever and hard-working people.

Zuma might just be the man. But he will need to deal decisively with the lingering doubts and suspicions that Mpshe's decision will have left hanging over him and his party.

The best way to do that would be, early in his presidency, to announce the creation of an independent judicial inquiry into the strategic arms deal that has so blighted our public life. It must be done if we are to heal.

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