Charge Zuma with trea­son

The pres­i­dent, his min­is­ters and other treach­er­ous of­fi­cials should be put on trial for vi­o­lat­ing the coun­try’s sovereignty

CityPress - - Voices & Careers - Cun­ning­ham Ngcukana

The for­mer pub­lic pro­tec­tor’s damn­ing State of Cap­ture re­port, re­leased last year, was a har­bin­ger of things to come in 2017. In May, the SA Coun­cil of Churches (SACC) re­leased its own probe into cor­rup­tion, ti­tled the Un­bur­den­ing Panel. Hot on its heels came the re­port by the coun­try’s aca­demics called Be­trayal of the Promise: How South Africa is Be­ing Stolen.

The Gupta email leaks have given cre­dence to all three re­ports.

The re­ports all find or­gan­ised cor­rup­tion and the wan­ton loot­ing of state re­sources in gov­ern­ment de­part­ments and state-owned en­ter­prises (SOEs). At the cen­tre of loot­ing are these SOEs, in­sti­tu­tions vi­tal to South Africa’s eco­nomic de­vel­op­ment and the proper func­tion­ing of our in­fras­truc­ture. They in­clude power util­ity Eskom; lo­gis­tics firm Transnet; the Pas­sen­ger Rail Com­pany of SA (Prasa); pub­lic broad­caster the SABC; na­tional car­rier SAA; arms com­pany Denel; and our var­i­ous wa­ter boards.

The re­ports are un­equiv­o­cal in their find­ings: our state in­sti­tu­tions have been hi­jacked for the ben­e­fit of the elite few. The aca­demics go fur­ther and call their probe “a silent coup”.

At the cen­tre of each re­port are Pres­i­dent Ja­cob Zuma and Malusi Gi­gaba, our cur­rent fi­nance min­is­ter, who is fin­gered in his for­mer po­si­tions as min­is­ter of pub­lic en­ter­prises and min­is­ter of home af­fairs. The two are al­leged to be the pri­mary fa­cil­i­ta­tors of cor­rup­tion and state cap­ture. The third player men­tioned is the pres­i­dent’s son, Duduzane.

The lack of a well-de­fined and doc­u­mented frame­work of what con­sti­tutes the coun­try’s na­tional se­cu­rity in­ter­ests poses a se­ri­ous prob­lem in this re­gard.

It is for this rea­son that, one be­lieves, for­mer pres­i­dents Thabo Mbeki and Kgalema Mot­lanthe have called for ANC MPs to vote with their con­science dur­ing the vote of no con­fi­dence against Zuma, so as to re­frain from call­ing what is hap­pen­ing trea­son and es­pi­onage led by the pres­i­dent, his Cab­i­net min­is­ters and those on SOE boards in ca­hoots with for­eign­ers who re­ceived their South African cit­i­zen­ship du­bi­ously.

The as­ser­tion of our for­mer pres­i­dents is that MPs who vote with the op­po­si­tion will not be vi­o­lat­ing any ANC prin­ci­ples. These MPs can prob­a­bly ar­gue in court that the duty they have to the coun­try, to­gether with their oath to up­hold the Constitution and the laws of the Repub­lic, su­per­sede the ANC’s constitution. They can even lay charges of in­tim­i­da­tion and ob­struc­tion in dis­charg­ing their du­ties against those who want them to fol­low the party line.

The end of apartheid never meant that there would be no cases of trea­son, as the Bo­eremag trial proved. It also never meant that there would be no traitors bent on sub­vert­ing the state’s in­sti­tu­tions and pro­cesses.

Zuma rep­re­sents the ul­ti­mate traitor for having sub­verted state in­sti­tu­tions such as the SA Po­lice Ser­vice, the Hawks, the Na­tional Pros­e­cut­ing Au­thor­ity (NPA) and other in­tel­li­gence agen­cies – with the heads of such bod­ies having Do you agree that the leaked Gupta emails and re­cent re­ports al­low for the pri­vate pros­e­cu­tion of the pres­i­dent and cer­tain min­is­ters? SMS us on 35697 us­ing the key­word CAP­TURE and tell us what you think. Please in­clude your name and prov­ince. SMSes cost R1.50 com­mit­ted the das­tardly act of ob­struc­tion of jus­tice.

For trea­son to oc­cur there must be in­tent, as well as con­comi­tant ac­tion, to vi­o­late a coun­try’s le­gal or­der. In other words, trea­son is a breach of the al­le­giance that a cit­i­zen owes to his coun­try. It be­comes more se­ri­ous when com­mit­ted by those en­trusted by the Constitution, and by law, to pre­vent it and to pros­e­cute those guilty of com­mit­ting it. As with any crime, wrong­ful in­tent is a cru­cial el­e­ment of trea­son.

The Gupta email leaks pro­vide suf­fi­cient proof of in­tent on the part of Zuma, who showed dere­lic­tion of duty in his ap­point­ment of Cab­i­net min­is­ters. By cre­at­ing a shadow state – or, in the words of for­mer fi­nance min­is­ter Pravin Gord­han and his deputy, Mce­bisi Jonas, “a par­al­lel state” – Zuma has in­ten­tion­ally ig­nored the es­tab­lished pro­ce­dures and pro­to­cols of ap­point­ing Cab­i­net min­is­ters and SOE board mem­bers.

In ad­di­tion to wrong­ful in­tent, the crime of trea­son re­quires the com­mis­sion of cer­tain acts. The leaked Gupta emails pro­vide suf­fi­cient proof of overt acts that con­sti­tute trea­son. They have co-con­spir­a­tors who, un­der the doc­trine of com­mon pur­pose, can be crim­i­nally charged as well.

What, then, of the mo­tion of no con­fi­dence against Zuma? There is a gap­ing hole in our Constitution. It fails what I call the Kader As­mal test, named af­ter the for­mer strug­gle vet­eran. As­mal spoke of the law as be­ing an in­stru­ment to pro­tect the weak against the pow­er­ful but not an in­stru­ment to sup­press the weak. The Constitution must be writ­ten to pro­tect the coun­try and its cit­i­zenry from the worst pres­i­dent.

It has failed to pro­tect us from a pres­i­dent who is a traitor to his coun­try and peo­ple. Not only is Zuma loot­ing the coun­try, but he is also giv­ing away mil­i­tary patents to In­dia through the Gup­tas and Denel.

The Constitution has no pro­ce­dures for im­peach­ment of a delin­quent pres­i­dent like Zuma, de­spite the pro­vi­sions of sec­tion 89 on this mat­ter. The Eco­nomic Free­dom Fight­ers has taken this pro­vi­sion – cor­rectly so – to the Con­sti­tu­tional Court. A mo­tion of im­peach­ment can­not take the same procedure as the mo­tion of no con­fi­dence: a sim­ple vote with­out a process that in­volves prob­ing a pres­i­dent’s mis­con­duct.

The Gupta email leaks should spur us to take ac­tion against those el­e­ments who con­tinue to un­der­mine our col­lec­tive in­tel­li­gence.

The independent me­dia, to whom we should be in­debted for ex­pos­ing cor­rup­tion on this grand scale in de­part­ments such as wa­ter af­fairs, so­cial de­vel­op­ment and pub­lic en­ter­prises, as well as SOEs, has shown that the fourth es­tate is an im­por­tant pil­lar of any democ­racy. This places an obli­ga­tion on us all to de­fend jour­nal­ists against thugs paid in crumbs by the Gup­tas to up­hold cor­rup­tion.

In ad­di­tion, civil so­ci­ety needs to im­me­di­ately set up a fund and as­sem­ble an ex­pert team to con­duct the pri­vate pros­e­cu­tion of Zuma and his acolytes, in­clud­ing the Gup­tas and guilty min­is­ters, on the grounds of trea­son, es­pi­onage and money laun­der­ing. These acolytes must in­clude the heads of po­lice, of the Hawks, of the NPA and of the State Se­cu­rity Agency. All must be charged for de­feat­ing the ends of jus­tice, ob­struct­ing jus­tice and be­ing ac­ces­sories af­ter the fact to trea­son.

We do not need a ju­di­cial com­mis­sion of in­quiry to ex­cul­pate those who have com­mit­ted se­ri­ous crimes against the state and the peo­ple of South Africa; we need pros­e­cu­tion. Zuma has a his­tory of abus­ing these com­mis­sions to ex­on­er­ate him­self and buy time. We should not go the com­mis­sion of in­quiry route as it will take time and ob­fus­cate is­sues. Prasa board chair­per­son Popo Molefe has led the way by tak­ing on the crim­i­nals at the Hawks for re­fus­ing to in­ves­ti­gate cor­rup­tion at the rail agency.

A pri­vate fund, set up to pros­e­cute Zuma and his guilty cronies would sig­nal that the out­comes of the ANC con­fer­ence are not the de­ter­mi­nants of who gets in­ves­ti­gated and pros­e­cuted. Civil so­ci­ety is. The Save SA cam­paign and its con­stituent struc­tures may be best placed to set up such a fund and send a clear mes­sage to traitors and law en­force­ment agen­cies gone awry.

The al­ter­na­tive, as in­ferred by the SACC re­port, would be too ghastly to con­tem­plate. It warns that South Africa is on the brink of be­com­ing a mafia state, from which there will be no re­turn.

The right to bear arms against an im­moral regime re­mains an op­tion to many of us who sac­ri­ficed our youth and ed­u­ca­tion in the strug­gle for free­dom. How­ever, this would come at a high price for the coun­try.

Nev­er­the­less, as for­mer free­dom fight­ers, we will not al­low the mort­gag­ing of our coun­try un­der what­ever guise. Some of us are ready and will­ing to lib­er­ate our peo­ple again, even from thugs and crim­i­nals like Zuma.

Ngcukana is a for­mer deputy di­rec­tor-gen­eral in the pres­i­dency and a for­mer head of Nepad’s gov­er­nance, peace and se­cu­rity clus­ter. He also headed the PAC’s

in­tel­li­gence in­ter­nally from 1985 to 1993

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