Over the past several months very clear lines were drawn between a ruling party trying to protect certain key officials from the law, and a civil society mobilising to protect prosecutorial and judicial independence from their efforts. The judgment by Chris Nicholson in the Pietermaritzburg High Court last Friday is one which has left the one side delirious, and the other confused and befuddled.
For his judgment said all of the right things about the need for prosecutorial independence while, at the same time, letting the most powerful politician in the country off the hook. If one analyses the judgment itself the legal findings are certainly open to dispute (and appeal) while the political claims are questionable.
The key legal question facing the court was whether Jacob Zuma had a right to make representations to the National Prosecuting Authority before it decided to reinstate the charges against him. This related to a clause in the1996 constitution, replicated in the NPA Act, whereby the (yet to be created position of) National Director of Public Prosecutions was given the power to review a decision by a Director of Public Prosecutions (the soon to be former Attorneys General.)
Under the previous 1992 Act the Attorneys General had enjoyed completely statutory autonomy. The fear of the opposition parties was that a political appointee in the NDPP post - the ANC had initially wanted this to be a cabinet position - would use this power of review to exert political control over prosecution decisions by his more independent-minded subordinates. As a result of their concerns certain checks and balances were built into the system in section 179(5)(d). These required that if the NDPP was minded to overturn a decision of a subordinate he first had to consult the relevant DPP and take representations from the accused, the complainant, as well as other persons he thought relevant.
In his founding affidavit Jacob Zuma contended that the decision to press charges against him in late December 2007, as well as the June 2005 decision, "constitutes a review of an reversal of a earlier decision" by the National Director not to charge me taken during August 2003. As such the National Director was required to take representations from him, and his failure to do so rendered the decision invalid.
In his answering affidavit for the state Johan du Plooy stated that in the view of the NPA the requirements of section 179(5)(d) were only applicable when the National Director overruled a subordinate (a Director of Public Prosecutions.) DPPs themselves were perfectly able to reverse their own decisions whether to prosecute or not to prosecute (for example, when further evidence came to light.) It would therefore be absurd to expect the NDPP to have to invite representations every time he reversed an earlier decision "despite the fact that under section 20(1) the NDPP and DPP are assigned identical statutory powers."
On Friday Judge Nicholson agreed with Zuma and ruled that a proper interpretation of section 179(5)(d) of the Constitution "means that the NDPP ought to have taken representations from the applicant before deciding to prosecute him." His judgment managed to draw a veil of impenetrability over the reasoning behind this aspect of his ruling - at least to this layman. It does itself concede that there "does appear to be some ambiguity in the sub-section and the words are not capable of unequivocal interpretation." And so, presumably, there is a reasonable prospect of an appeal court coming to a different conclusion.
However, the real political weight of the judgment lay in its claims of political interference by President Thabo Mbeki in the workings of the NPA. In his founding affidavit Zuma had made it "clear that I am not at this stage impugning the decision [to prosecute in December 2007] itself based on inter alia the reasons and motives for the decision; that will be addressed in another application if needs be."
He also stated that "in dealing with these events I shall endeavour to steer away in so far feasible from contentious issues such as the political motives and strategems which I verily believe were and are the driving forces behind many of the actions of the prosecuting authorities and those who influence these. This avoidance must not be construed in any manner as an acceptance by myself that the process was regular and not tainted by political motives, stratagems, considerations and undertones."
Du Plooy pointed out in his affidavit in response "notwithstanding the above, a substantial portion of what follows is devoted to precisely such allegations of political motives which, on the applicants own case, are completely irrelevant to the issues at hand." He writes that these allegations which are made "without putting up a shred of evidence" brought the institution of the NPA into disrepute: "I am advised that such allegations are scandalous and vexatious and serve no purpose other than to gratuitously slander the NPA and the officials concerned and to generate self-serving political propaganda."
It is on the basis of this request that Judge Nicholson made various comments about the influence of the presidency over the work of the NPA. As the Sunday Times interpreted it Nicholson had slammed, "apartheid-style manipulation of the prosecuting service by President Thabo Mbeki." These claims have had massive political repercussions over the past week, and they could well lead the ANC's National Executive Committee into demanding the head of the Mbeki this weekend.
There were two fundamental problems with Nicholson's findings in this regard. The first was that, as the presidency was quick to point out, Mbeki had not been a respondent in the case. This meant that Nicholson was making adverse findings against him - which could very well result in his departure from office - without giving him a chance to put his case forward. The second was that the evidence that Nicholson mustered did not actually substantiate his contentions.
The culture of the ANC, carried over from the exiled period, was to deal with accusations of corruption internally. So, when after 1994, party cadres now in state employ were caught with their hands in the till the general pattern was for the ANC to try and manage the matter ‘in house.' The individual concerned was at most redeployed (sometimes back to Shell House) and the ANC heads of their department would do their best to make sure they were protected from the law.
From 1997 onwards the new ANC leadership setting about drawing an iron circle of impunity around itself. Senior party members were deployed to all key positions across the state apparatus, including ostensibly independent ones - such as the prosecution service. Party documents made very clear that these individuals were expected to remain informed by and accountable to the party structures. Many independent-minded professionals were pushed out of their jobs.
Any kickbacks from the arms deal time would have started flowing in April 2000. By this stage the circle had basically been joined, with political appointments to the top positions in the police and auditor general's office. At the ANC's National General Council (NGC) in July 2000 the organisation boasted that it had "achieved considerable progress in the deployment of political and administrative heads". It was at middle management level that much still had to be done.
The consequent history of South Africa concerns how that circle of impunity was ruptured. If any single senior ANC leader is to blame for its breakdown it is Jacob Zuma who, for reasons which remain unclear, provided the political cover for Andrew Feinstein to help engineer the launch of the arms deal inquiry in November 2000. That action would set in train a process which would eventually lead investigators to the offices of Schabir Shaik - where they would come across the incriminating files he kept on politicians he had financial dealings with, one of whom was Zuma himself.
Nicholson begins his criticism of ‘political interference' with the decision by the then NDPP (and former ANC MP) Bulelani Ngcuka not to prosecute Jacob Zuma along with Schabir Shaik. It is important to note, at this point, that while the top officials in the NPA were political appointees, of one kind of another, the investigators and prosecutors who did the real work were non-partisan professionals.
In the statement made on August 23 2003 Ngcuka stated: "The investigating team recommended that we institute a criminal prosecution against Deputy President Zuma. After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case."
In his statement Ngcuka made clear that out of the "deference due to his office" every consideration had been extended to Zuma. He had been informed of the investigation when it was launched. The NPA had gone to great lengths to keep Zuma's name out of various legal documents that went out into the public domain. His offices were never searched. Quite obviously the NPA was treading on eggshells when it came to investigating the financial advisor of the second most powerful politician in the country.
If the NPA had not been headed by a former ANC MP - and husband of a cabinet minister - political considerations and loyalties may not have come into play in the way that it did, and Zuma would have been prosecuted along with Shaik. It is also possible that were it not for breakdown in relations between Mbeki and Zuma - and the loss of any real desire by the one to spend political capital protecting the other - the investigation would not have been allowed to go so far as it did. But this then would be a case of political non-interference, in a situation where Zuma (and Shaik) needed it desperately.
Jacob Zuma's next complaint was that he had been fired from the cabinet after the Schabir Shaik judgment. Nicholson endorses Zuma's sense of victimhood on this score describing it as "unfair and unjust" though not illegal. But in what (non-corrupt) democracy in the world would the sentencing of a close crony of a senior government official to 15 years in jail on corruption charges not lead to their departure from government?
The decision by Vusi Pikoli, shortly thereafter, to reverse his predecessor's previous decision and have Zuma charged was consistent with the original wishes of the (non-partisan) professionals who ran the investigation into Shaik's and Zuma's affairs. The chances of a successful prosecution had also been immeasurably strengthened by new evidence that came out in the Shaik trial, as well as judge Hilary Squires's ruling on the admissibility of certain key evidence.
Du Plooy states in his affidavit, "in the circumstances which prevailed after the Shaik trial, in which the State's case has been so completely vindicated by the court and so obviously implicated the applicant in corruption of the most egregious kind, it is almost inconceivable that any reasonable prosecutor would not have come to the same decision."
Counterfactually: if the NPA had decided not to charge Zuma, what then? Would this have been a sign of it acting independently, without fear or favour? It is possible that Mbeki was still powerful enough, at that point, to have prevailed upon the NDPP not to proceed with the prosecution. That he chose not to - even out of the worst and most cynical of motives - is surely a sign of non-interference (not the opposite).
Nicholson makes much of Pikoli's removal as national director, for having refused to withdraw the charges against national police commissioner Jackie Selebi. But again this points to the opposite interpretation that Nicholson puts on it. It suggests that Pikoli was an independent-minded national director, and that the NPA was increasingly willing to assert its obligations (to prosecute without fear or favour) against political interference. His acting replacement, Moketedi Mpshe, had the least political background of all three national directors. Though he may have succumbed to pressure to suspend the Selebi warrants, he does not have seen to have done the Presidency's bidding much beyond that.
Nicholson frames much of his interpretation of the ‘political meddling' in the prosecution service in the context of the struggle for the ANC presidency. He states, "The applicant claims his woes were attributable to his decision to accept nomination of others and stand for the position of head of the party, as a rival to the incumbent president. Clearly the stakes were high and the competition fierce."
It is not clear that Zuma does make claim this, or could. The investigation into Shaik began in mid-2001 so before Mbeki had even stood for a second term as ANC president. Zuma only formally accepted nomination for the ANC presidency in late November 2007. But his de facto campaign had really been launched by the rebellion by the ANC rank-and-file at the party's National General Council in mid-2005 - after he had been sacked as deputy president. Zuma's campaign against Mbeki was at least partially driven by an understandable sense of grievance that he had been unfairly singled out; as well as a desire to protect himself from the NPA's attack.
The most potent, and much quoted, section of the judgment was Nicholson's comment that, "The timing of the indictment by Mr Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane was most unfortunate. This factor, together with the suspension of Mr Pikoli, who was supposed to be independent and immune from executive interference, persuaded me that the most plausible inference is that the baleful political interference was continuing."
Yet this is not the most plausible political inference. In early November the Supreme Court of Appeal upheld an appeal by the State and ruled that material seized in various searches of Zuma's properties was admissible. The NPA set about finalizing a new draft indictment based upon new and old information. This was completed by December 11 2007. That the NPA seemed to have waited until after Polokwane to serve its indictment could be read as a sign that it did not want to become entangled in the ANC's succession battle.
By that stage Mbeki was a dead duck politically. It was no longer necessarily in his objective interests for the Zuma prosecution to go ahead. Nor was he any longer in a position to exert meaningful pressure on the NPA to do his bidding. The reinstatement of charges against Selebi in the New Year - still against the wishes of Mbeki - was surely proof enough of this.
Too many journalists and commentators have allowed their attention to be led away from the practical (and predictable) consequences of the judgment by the rhetoric around the need for prosecutorial independence. In his judgment Nicholson makes much of the close relationship between Ngcuka and then Justice Minister Penuell Maduna. This was certainly inappropriate, but perhaps not as unlawful as Nicholson makes out. Where Nicholson really errs is by drawing a straight line from there up until the present.
Maduna left office in 2004 and since then the NPA has managed to largely extricate itself from the political fetters the ANC tried to place on it in the late 1990s. It is the only state institution - outside of the judiciary - which has managed to secure some kind of independence for itself. The same cannot be said for the police or the intelligence services.
Its willingness to prosecute senior ANC officials - on both sides of the Mbeki Zuma divide - has made it an anathema to many in that organisation; as well as to those who wish to plunder the South African state with impunity. For all his talk about the need to insulate the NPA from political meddling the Nicholson judgment is likely, in hard political terms, to have the opposite effect.
It is in the interests of the corrupt elements in both the Zuma and Mbeki camps for the circle of impunity to be rejoined. Nicholson's attack on the credibility of the NPA has greatly weakened the organisation, and made it more (not less) open to political attack and interference. It has also struck a huge blow against the professionals who, against extraordinary odds, have tried to ensure that not even the top ANC leadership are above the law.
In his answering affidavit Du Plooy stated that "the issue of the prosecution of the [Jacob Zuma] is a matter of tremendous public interest.... The prosecution imperative remains, namely to prosecute without fear, favour or prejudice. I submit that the most pressing interest involved is to have the guilt or innocence of a person who aspires to the highest office of the land definitively determined in a court of law. The granting of this application would only serve to delay this end."
This is as true now, as it was before last Friday.