How Zuma kept his secrets

In the second extract from his revised and updated book on the arms deal, After the Party, Andrew Feinstein says the President-elect continues to defy the law by refusing to divulge what he knows about the arms scandal and the role of others involved.

See also; Zuma trial should have gone ahead - Seagroatt. Hong Kong judge on whose case NDPP relied suggests Mpshe [NPA Head] was wrong to stop prosecution.

Jacob Zuma has been implicated in corruption not only by his actions, but also by his omissions.

In terms of the Prevention of Corruption Act of 2004 it is an offence for anyone who holds a position of authority and who knows that any person has committed corruption, not to report such an offence.

Zuma’s legal team have regularly implied that he knows far more about the arms deal than he has revealed.

Judge Chris Nicholson stated quite explicitly in reference to the arms deal: “The court can hardly be unaware of the other dark mutterings emanating from the applicant (Zuma) that if he goes down others will follow him. Like a blinded Samson he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge he will disclose if he is faced with conviction and sentence.”

So are we to assume that if Zuma is not convicted (now known to be the case) he will continue to defy the law and refuse to divulge what he knows? Not quite the behaviour a country beset by crime desires of its leader.

The lingering cloud of corruption is not the only thing suggesting that Jacob Zuma is hardly the ideal person to lead the ANC, let alone South Africa. Serious concern has arisen about the manner in which he and his supporters have attacked the judiciary, the media and their critics, their expectation of obeisance from ANC parliamentarians, their purging of people from positions in government and the party who are not of their camp, and their destruction of the Scorpions.

Straight after Polokwane, Parliament was brought under the Zuma camp’s control. The Chief Whips in both houses, as well as the Caucus chairperson, were replaced.

The ANC’s Political Committee, a body that lays down the party’s political line in Parliament much as the Governance Committee had during my time, was radically rejigged. At its head was the new national chairperson of the ANC and Parliamentary Speaker, Baleka Mbete. This was an outrageous appointment; there was no way in which the chair of the committee that determines the ANC’s political strategy in Parliament could possibly perform the role of Speaker in an impartial and non-partisan manner.

The appointment clearly showed that the new ANC leadership perceived Parliament as Mbeki had done, that is, as another entity that had to be under the total control of the party, rather than perform its crucial constitutional role of holding the Executive to account.

Mbete, in her new, powerful roles, set about trying to ensure that the Travelgate saga died a quiet death, thus preventing any further embarrassment to MPs, and especially some senior Cabinet ministers. In May 2008, the Speaker and Secretary to Parliament issued a notice directing liquidators of Bathong Travel (the main travel agency involved) “not to pursue any action against the various Members of Parliament in relation to the un-invoiced tickets, levies and/or services”. This instruction failed, with creditors obtaining an interdict in the Cape High Court. Mbete and the Secretary, Zingile Dingani, adopted another strategy. They initiated behind-closed-doors discussions with the liquidators to try to achieve the same end – the withdrawal of all legal action against MPs.

Among those in debt to Parliament for misusing their travel vouchers are the current Defence Minister and former Minister for Safety and Security, Charles Nqakula, and the current Chief Whip, Nyami Booi, who has refused to settle and faces charges of fraud, or alternatively theft, in the Cape Town Regional Court.

Mbete attempted to justify her actions by alleging venomous behaviour on the part of liquidators – this, despite legal opinion from three senior counsel that the actions against the MPs were sound in law. She also ensured that a key witness who had worked extensively on the issue was sidelined.

A lawyer, Bernhard Kurz, who represented both Parliament and the liquidators at the height of the affair, suggested that Mbete was misrepresenting the facts. Kurz stated: “The Speaker has made three or four statements. She knows each one of those is factually incorrect and the real problem is the manner in which the MPs have responded to the liquidators.”

The liquidators felt that the actions of the Speaker were an attempt to slow down and frustrate rather than help their inquiries. “It has been,” Kurz concluded, “an incredible disappointment to me that elected leaders have this kind of contempt for the legal process.” Such contempt is hardly surprising given Essop Pahad’s comments when the first case of abuse arose. As I recounted earlier, he stated quite explicitly that abuses carried out for party purposes were beyond criticism or reproach.

This conflating of the interests of the party and the State, and the use of the party as a shield to conceal corrupt behaviour by individuals, has undermined South Africa’s democracy on a daily basis.

The most flagrant example of the disabling of the country’s institutions of democracy to protect key party members can be found in the demise of the Scorpions. Immediately after Zuma’s victory at Polokwane, the conference passed a resolution calling for the disbandment of the unit.

The only logical reason for this demand was the Scorpions’ considerable success in investigating senior ANC leaders, many of whom were now running the party. They included Zuma himself, his financial adviser Schabir Shaik, Tony Yengeni and Jackie Selebi. Siphiwe Nyanda, former head of the Defence Force and business partner of the controversial Fana Hlongwane, stated it most baldly: “It (the ANC’s resolution to disband the Scorpions) was informed by the view of how the DSO conducted itself in relation to Jacob Zuma.” Unsurprisingly, among those most vocal in calling for the Scorpions’ demise were Nyanda and others in the ANC who are most closely linked to the arms deal.

What right does a party conference have to insist on the eradication of an institution of State that has been crucial in the fight against corruption?

The Scorpions have not been perfect, as I suggested in relation to the arms deal investigation, but they have been effective – clearly too effective for the new tainted leadership of the ANC, which wasted no time in steam-rolling legislation through Parliament to disband the body.

This new leadership has generally displayed a cavalier attitude to the judiciary and the rule of law, to the extent that it has created the greatest threat to the independence of the judiciary since the 1950s.

The esteemed senior jurist and long-time anti-apartheid activist Judge Dennis Davis wrote that the political climate, where “influential members of the ruling party” have labelled senior judges “counter-revolutionary”, resembles that of the nationalist government of 50 years ago. He suggested that these incidents should serve as a “salutary warning of a possible threat to the judicial institution”. This was further reinforced when Schabir Shaik was released from jail in early March 2009, having served a little over two years of a 15-year sentence. The medical grounds on which he was released cover prisoners who are in the last stages of a terminal illness.

Intemperate language that undermines the rule of law is a signature of the fiery, Zuma-supporting leader of the ANC Youth League, Julius Malema. In his most notorious outburst on June 16, 2008, at a Youth Day rally in Thaba Nchu in the Free State, Malema vowed: “We are prepared to die for Zuma. … We are prepared to take up arms and kill for Zuma.”

Whether this was the hyperbolic passion of a youth pledging support for his leader or a threat aimed at those attempting to prosecute Zuma for corruption, we will never know. Nevertheless, it was remarkable in a country ravaged by violent crime and the recent attacks against immigrants that Zuma, sitting behind Malema on the stage that day, chose not to dampen or criticise in any way the remarks or sentiment of his most vocal praise-singer.

This suggests, as William Gumede has written, that “the country’s not-yet consolidated constitutional system, institutions and values are at the same risk now as they were from Mbeki’s previous manipulation of them”.

Andrew Feinstein was an ANC MP for more than seven years before resigning in protest at the party’s handling of the multi-billion rand arms deal. His revised and updated edition of After the Party (Jonathan Ball Publishers, 2009) is available from bookstores nationwide for R143. It was published before charges were dropped against Zuma.