Advocate Shaun Abrahams, the NDPP on Friday confirmed the worst kept secret of recent times, that he has informed former President Jacob Zuma through the latter’s attorneys that he was going to charge him on the 13 year long, 18 account charges. The charge sheet concerns itself with 783 recorded transactions of question in frames of claim for money laundering, corruption and fraud that is traceable to the much made off arms deal.
We cannot claim not to have expected his decision on the subject matter. If in any sense he had opted to not to charge Zuma he would have been castigated for being complicit to a crime, at least as dictated by those who claim to act in the interest of SA. A view that some of us totally disagree with.
The decision of Abrahams firstly will and cannot save his own job, those who call for his head had long concluded that he is unfit, a lackey of the former president and one that will be fired as soon as he can charge Zuma. So those who assume this act on his part will save him, must dispense with the notion that charging Zuma automatically or in any sense could save the Abrahams’ job. He is a goner in so many ways and have just aided Ramaphosa no different to how Mbalula did when he became public on arrest warrant claims for the most infamous family of SA, the Guptas. The same fate that befell Mbalula will visit upon him.
With the announcement now made it is time to ask is justice served, with this charging of Zuma? Abrahams is on record for at least having twice categorically stated, “justice must just be done but it must be seen to be done”. This common claim by itself warrants unpacking perhaps later.
There are those who will brush my question on justice off with claims of “Zuma wanted his day in court”, so justice is duly served. This attempt to answer a much more complex and necessary question is perhaps pedestrian, colloquial and forcefully convenient. To argue Zuma wanting his day in court as the cornerstone reason for justice appears noble yet it is more political than noble.
One of the fundamental principles for justice to be served or seen to be served is the recognition and uphold of constitutional rights of the accused. In a constitutional democracy these rights do not supersede other rights yet they are also not to be discounted as of no meaning and therefore dispensable if not discardable only because the noise that claim the accusation is loud.
Those rights are therefore protected in chapter 27 of the Bill of rights but also further given content and meaning in an institutional base of a national prosecuting authority, which still in South Africa is the solitary means by which anyone can be dragged before a court. Thus the centrality of a functional NPA and a fair and just leadership of it as an institution beholden to the upkeep of the constitution and nothing else is more than a prerequisite but a fundamental if it hopes to be considered in pursuit of justice.
The intention then of the NPA is to firstly act in the interest and uphold of the constitution, that acting in uphold includes the totality of the meaning of a constitution and is not exempted from the reality of the human rights of all including those who stand accused of a crime.
If we therefore going to attempt to answer if justice was done with the Abrahams announcement than we will have to engage this institution and its leadership in mandate, action, word and plausible agenda.
Advocate Bulelani Ngcuka the NDPP at the time when these charges were first proffered after having done an investigation concluded that though a prima faci case may exist for Zuma to answer questions, a winnable case was not guaranteed, thus he opted not to charge Zuma at the time.
The legally interesting thing is that the accused number two Shabir Schaick was charged and found guilty and served a short period before he was released on a questionable medical parole. A second interesting aspect of the Ngcuka season and also material evidence reality was the political context of that time.
We also know that Leonard McCarthy in the spy tapes is on record to have engaged the charging of Zuma from a pure political vantage reality for former president Mbeki and almost was looking for a convenient time that could best serve the political interest he had decidedly agree with. To the extent that the timing of the charges of Zuma became a matter of concern and critical factor for this political reality. We know that McCarthy and Ngcuka engaged this subject as the tapes would lead us.
We also know that Advocate Ngcuka convened a press briefing and shared with editors of the media is no infamous claim ” prima faci case yet not winnable”. The legal scrutiny for this claim has never been tested while the political meaning of this stood aghast since Zuma was now tainted but the case against him was not winnable. In my non jurist mind, prima faci suggest material evidence to charge with more than reasonable prospect to succeed in court. We have never been told what made the case not winnable, when the evidence is concluded as prima faci. Hopefully we may finally hear it in the actual case.
Right here the political motive for prosecution is made glaringly visible when an institution that must act at all times free from political interference became directly subservient to a proven political agenda. It does not matter who is or was to be advantaged, the case can be made that the NPA as an institution did not act without fear and prejudice in solicitation or upkeep of the law but allowed itself to become trapped in the quagmire of politics when it’s sole mandate is to engage in law as it attempts to let justice stand.
Equally Ngcuka’s ambivalent claim lends credence to the fact that a political motive to smear Zuma and thus his political future in public space was with this attained when a claim of a not winnable case was made.
The NPA with this series of actions immanent in its leadership compromised firstly itself as acting in the interest of its mandate, the constitution or those it accused who as chapter 27 leads share in the democratic franchise rights.
The second time the NPA considered this matter, was in 2009 on the eve of the first term of the Zuma presidency. The new NDPP was Advocate Mokotedi Mpshe. Mpshe again presented with an opportunity to proffer charges opted to look at the political context, that context had a boisterous and recently elected Jacob Zuma in ANC setting as president. Mpshe in reviewing the tapes decided to withdraw the charges therefore extended Zuma a stay from prosecution.
This decision recently was tested in two courts which independently concluded Mpshe’s decision not to charge Zuma as irrational. Late in his defence, Zuma’s attorneys agreed that the decision was irrational. The court therefore ruled that Abrahams cannot use the claims advanced of the conflicted NPA extrapolated from a combination of Ngcuka and Mpshe actions as justifiable means to call for a stay this time around but must give substantial and sustainable reasons for not prosecuting former President Zuma.
Abrahams with the reality of his predecessor’s Advocate Nxasana acrimonious departure from office, the subject of his firing therefore as tested in court must have weighed heavy if not determined his decision to charge Zuma. Not only that but he Abrahams himself has made a number of questionable prosecutorial decisions with his charging of Pravin Gordhan, Ivan Pillay and Johann van Loggerenberg on a human resource matter that made his presence in this office completely untenable. The backlash when he had to retract as admitted blunder proved suicidal and more than a career limiting move. Therefore Abrahams beyond a Zuma presidency has a life to pursue and needed to attempt being seen to redeem himself. If we can claim that his charging of Gordhan and others were politically motivated, can we also not ask if his charging of Zuma emanates and is cognisant of that very political context?
It is not difficult to conclude in all three instances where the NPA leaderships had to engage this subject for contemplation, the political contexts weighed much more than the interest of law hence justice was scarred and sacrificed at the altar of the injustice.
Zuma is done a disservice because from the start the political considerations be they against or for him dictated the ultimate decisions of an institution that prides itself to be acting without fear or prejudice in the upkeep of the constitution and those the constitution afford an agency of a common humanity.
Thus we may consider to conclude if Ngcuka’s decision was political and aided Mbeki, if Mpshe’s decision was also political to serve the interest of Zuma’s political identity than we must accept Abrahams’ decision today is just as political with core interest of self -redemption for possible career options on the one hand and a Ramaphosa presidency on the other.
We must therefore ask should the now confirmed political interest as now a confirmed deciding factor in the behaviour of NDPP’s over the last 13 years really be afforded to hide behind the law, in claims of justice to be done or seen to be one?
At a broader level, exactly who is served with this announcement, whose interest is paramount in all of this? Should political interest ever have entered the scope of due consideration? What political interest is served with this announcement?