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A Quick Guide to the Jacob Zuma Matter

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A Quick Guide to the Jacob Zuma Matter Powered By Docstoc
					       A Quick Guide to the Jacob Zuma Matter

Why did the National Prosecuting Authority (NPA) bring charges
against Jacob Zuma, president of the ANC, in 2007? What is the
background to these charges?
On the 28th of December 2007, Mr Jacob Zuma, President of the ANC, was
charged with various counts of racketeering, money laundering, corruption and
fraud. This was the second time such charges were brought.

The allegations against Mr Zuma first came to the public attention in 2003 when
the then National Director of Public Prosecutions, Mr Bulelani Ngcuka, made an
announcement that there was a ‘prima facie case’ of corruption against him.
However, Ngcuka declined to prosecute Zuma on the ground that the state did
not have a winnable case at the time.

The NPA – headed by Ngcuka’s successor Advocate Vusi Pikoli, charged Zuma
for the first time in 2005. This followed the conviction of Zuma’s close friend and
financial adviser, Mr Schabir Shaik, on two charges of corruption, and for
soliciting a bribe for Zuma from a French arms deal beneficiary in exchange for
protection from possible investigation into the arms deal.

As a result of Shaikh’s conviction, then South African President, Mr Thabo Mbeki,
released Mr Zuma from his duties as the country’s Deputy President in June
2005. However, in 2006, the Pietermaritzburg High Court dismissed Zuma’s
corruption case because the prosecution team was not ready to prosecute the
matter.

Mr. Zuma was subsequently recharged in December 2007, shortly after he was
elected as President of the ANC at the party’s 2007 Polokwane Conference. At
this conference, he defeated then South African President Mbeki for the
leadership position of the ruling party.

According to the 2007 indictment (charge sheet), Mr. Zuma was to appear before
court on 14th of August 2008. A series of legal challenges by Mr. Zuma relating
to evidentiary and procedural matters followed. Finally, the trial date to hear the
merits of the corruption charge was set for 25 August 2009. Zuma was also
expected to apply for a permanent stay of prosecution.




                                                                                  2
Why did the NPA drop charges against Jacob Zuma? Was the
decision based on the merits of the case?
On 7 April 2009, Acting National Director of the NPA, Mokotedi Mpshe,
announced that charges would be dropped against Zuma because of alleged
political interference leading to an abuse of the legal process. Such manipulation
and abuse of process, according to Mpshe, were evident from transcripts of
telephone calls between Leonard McCarthy, ex-head of the Scorpions, and
Bulelani Ngucka, ex-head of the NPA.

Among other things, Mpshe maintained that there was evidence that McCarthy
and Ngucka colluded to change the timing of the announcement of the
reinstitution of charges against Zuma so as to maximize the detrimental effect to
Zuma. Mpshe concluded that it would therefore be “unfair and unjust” to continue
with the prosecution.
 Mpshe described the alleged abuse of process by McCarthy and others as a
“policy aspect militating against prosecution”. Mpshe said the NPA’s decision
took into account 1) the merits of the case against Zuma; 2) any legal defences
Zuma may have concerning the fairness of any trial; 3) the practical implications
and considerations of a continued prosecution of Zuma; and 4) the policy aspects
militating against prosecution. However, only the latter – the policy aspects - had
guided his decision.

The NPA’s decision was not based on a lack of merits - the NPA has stated on
record that Zuma had a solid case to answer, and would have received a fair trial
had the matter been pursued. However, the NPA ultimately took the view that
the alleged political interference and abuse of process in his case rendered the
continuation of the trial “unconscionable.”




                                                                                 3
What have been the various responses to the NPA’ s
decision? Why is the matter receiving such great
attention?

Broadly speaking, two opposing responses are evident. On the one hand, critics
argue that the decision potentially threatens the rule of law and the basic
democratic principle of equality before the law. These critics argue that the
decision to drop charges was based on political considerations, rather than on
sound legal reasoning. They contend that the NPA has given Zuma preferential
treatment. They also raise the concern that the corruption charge - which Zuma
will now no longer required to answer in court - will cloud his presidency. There
are also others who decry the abuse of state institutions unveiled by the NPA, but
think that Zuma should still have had his day in court.


On the other hand, some have long argued that Jacob Zuma is innocent and that
a political conspiracy drove the corruption charges against him, and thus now feel
vindicated. These commentators argue that Zuma’s rights have been violated by
the abuse of legal process uncovered by the NPA, and that Zuma has effectively
been tried unfairly in the court of public opinion.


The matter is receiving such great attention for a number of reasons. First, the
prosecution threatened to act as an obstacle to the Presidency of Zuma, who is
widely tipped to win on April 22nd. Second, the allegations of misconduct within
the NPA potentially reflect negatively on the legacy of former President Thabo
Mbeki, and various others officials. Finally, the decision has received much
attention because it effectively ends any opportunity for the merits of the case
against Zuma to be heard in a court of law.




                                                                                4
What did the tapes allegedly say? Were the tapes legally
obtained?
The tapes allegedly contained conversations between McCarthy and Ngcuka in
which they discussed the charges against Zuma. Most of the discussion
centered on the timing of the announcement to reinstate the charges.

According to Mpshe, after receiving the tapes the NPA approached various
agencies that have a legal mandate to intercept phone calls to see if they had
obtained recordings of the same conversations from the tapes submitted by the
defense. The National Intelligence Agency (NIA) confirmed that it had legally
obtained recordings of many of the same conversations which were obtained
during the investigation of the production and leaking of the Browse Mole report.

The 18- page Browse Mole report was a top-secret intelligence document
compiled by the Directorate of Special Operations (Scorpions) in 2006. The
document claimed that Mr Jacob Zuma - Deputy President of the ANC at the time
- was involved in a conspiracy to topple Mr Thabo Mbeki, then President of both
the ANC and South Africa. The document further alleged that Zuma’s cause was
supported by funding from the Angolan President, Mr Eduardo Dos Santos and
Libyan President, Mr Muammar Qadhafi.

Although Mpshe confirmed that the NIA had legally obtained copies of the same
conversations, he did not address the question of how Mr Zuma obtained copies
of these conversations. It is unclear whether the defense copies were obtained
from the NIA itself or from a third party.




                                                                                    5
Is this the end of the case against Jacob Zuma? Are legal
avenues to challenge the NPA’s decision being pursued?

All charges against Jacob Zuma were formally withdrawn by the Pietermaritzburg
High Court on 7 April 2009 and he will no longer be required to stand trial.

It is worth noting that certain parties have indicated their willingness to pursue
legal avenues to challenge the dropping of charges, including an application for
judicial review of the NPA’s decision. The High Court is expected to consider the
review application on 9 June 2009.


Will further prosecutions follow arising from the NPA’s
disclosure of abuse of process?
Regarding political interference, although McCarthy and Ngucka have been
fingered for political manipulation, Acting Director of the NPA Mpshe has stated
Mbeki was not involved in the alleged abuse of process. Some have argued that
the state should bring charges against all those involved in the alleged abuse of
process – whether that is McCarthy, Ngucka or Mbeki. They caution against
selective prosecution in this regard.

It has been reported that opposition political parties have filed a complaint
against Leonard McCarthy, and Bulelani Ngcuka in this regard.

Regarding illegal leaking of evidence, recent reports suggest that the National
Intelligence Agency itself leaked the information to Zuma’s lawyers and there
have been growing calls for charges to be brought against all those involved in
the possession and distribution of these tapes. There are indications that
                                               s
complaints have now been laid against Zuma' lawyer Michael Hulley and
National Intelligence Agency (NIA) deputy head Arthur Fraser in this regard. The
NIA has, however reportedly denied that the Arthur Fraser has leaked the
information.




                                                                                 6
According to the law, what should guide the NPA’ s decision to
prosecute a case? What does South Africa’s prosecution policy
say?
.
The Constitution (section 179) says that the NPA must act “without fear or
favour”. Section 179(5)(a) of the Constitution also states that the National
Director of Public Prosecutions (NDPP) must determine a prosecutions policy
with the concurrence of the minister of justice and that this policy must be
observed in the prosecution process.

The Prosecution policy says the following: “Once a prosecutor is satisfied that
there is sufficient evidence to provide a reasonable prospect of a conviction, the
policy states that a prosecution should normally follow, unless public interest
demands otherwise.” “Public interest” can mean a wide variety of things in the
context of the decision to prosecute, including such factors as: the nature and
seriousness of the offence, the interests of the victim and the broader community
and the circumstances of the offender. The prosecution policy mandates that the
relevance of these factors and the weight to be attached to them will depend
upon the particular circumstances of each case. Further, the policy stresses that
“It is important that the prosecution process is seen to be transparent and that
justice is seen to be done.”




                                                                                7
What are some of the important legal precedents in the
Jacob Zuma matter, and what is their significance?
There are two essential precedents in the Zuma case. First, Pietermaritzburg
Judge Chris Nicholson decided that the charges were unlawful because of the
National Prosecution Authority’s procedural irregularities. For instance, the NPA
did not allow Zuma a chance to make representations, which the Constitution
requires, before deciding to charge him. Nicholson also noted that he believed
there had been political interference in the decision to prosecute Zuma, but relied
on the procedural violation as the determining factor which made the charges
unlawful. Although many media reports incorrectly reported that the charges had
been dropped, the NPA was allowed the opportunity to recharge Zuma once the
procedural flaw had been corrected, namely by allowing Zuma to be informed of
the gist of the case against him and to make representations to the NPA
regarding the case.

The second case concerned an appeal of Nicholson’s ruling lodged by former
President Thabo Mbeki. This appeal was heard in January 2009 by Deputy
Judge President Louis Harms of the Supreme Court of Appeal in Bloemfontein.
Harms ruled that Nicholson’s Constitutional interpretation was incorrect and that
the NPA was thus not required to provide the procedural guarantees which
Nicholson demanded in his ruling. Finally, and most importantly from the
perspective of the recent decision to drop charges, Harms found that Nicholson
and the lower court had “overstepped the limits of its authority” in raising
allegations of political meddling. The significance of this case is that Harms
found that “A prosecution is not wrongful merely because it is brought for an
improper purpose.” The NPA’s decision to drop the charges seems to contradict
this statement, which stands as valid and binding precedent.


For   further  questions,        please    contact     Shameela      Seedat     at
sseedat@idasa.org.za




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