‘State wit­ness’ op­tion for Zuma

Talks about avoid­ing prison if he turns on Gup­tas — and pos­si­bly his own son

Sunday Times - - Front Page - By RANJENI MUNUSAMY

It is ac­tu­ally quite sad that Cyril and JZ are ne­go­ti­at­ing this mat­ter in an­tic­i­pa­tion of charges be­ing brought against the pres­i­dent — with­out even know­ing what the charges will be

Pres­i­dent Ja­cob Zuma is be­ing of­fered the chance to es­cape pros­e­cu­tion on charges of state cap­ture if he ad­mits crim­i­nal wrong­do­ing and turns against the Gup­tas. The prospect of a plea bar­gain is part of an exit pack­age be­ing se­cretly ne­go­ti­ated be­tween ANC pres­i­dent Cyril Ramaphosa and Zuma. The le­gal com­plex­i­ties and costs, as well as the fact that South African law does not ac­com­mo­date po­lit­i­cal deals for crim­i­nal pros­e­cu­tions, lies be­hind the de­lays in the talks and a de­fer­ment of Zuma’s res­ig­na­tion. The Sun­day Times has learnt that Ramaphosa is try­ing to se­cure Zuma’s co­op­er­a­tion in the state-cap­ture in­ves­ti­ga­tions and has so­licited opin­ions on le­gal av­enues that would al­low the pres­i­dent to avoid pros­e­cu­tion or re­ceive a re­duced sen­tence. Ramaphosa has been warned that such a deal could only have le­gal stand­ing with the in­volve­ment of the NPA and would re­quire full dis­clo­sure by Zuma of any crim­i­nal acts. Zuma would also have to re­veal who else was im­pli­cated in the com­mis­sion of the crimes. This es­sen­tially means that Zuma will have to help the po­lice and NPA pros­e­cute the Gup­tas, and pos­si­bly his son, Duduzane. The prospec­tive deal would only be ap­pli­ca­ble to the state-cap­ture in­ves­ti­ga­tions and not Zuma’s pend­ing cor­rup­tion charges in re­la­tion to the Sch­abir Shaik case. Al­though Ramaphosa told the ANC cau­cus on Thurs­day that he was not ne­go­ti­at­ing an im­mu­nity deal, the Sun­day Times un­der­stands Zuma would be given op­tions that could al­low him to avoid jail time. “South African law doesn’t al­low for blan­ket amnesty but there are ways in law to re­duce harm to him­self,” said one of the peo­ple con­sulted on the le­gal op­tions. “The dif­fi­culty with Zuma is that he will for once need to say ‘I did wrong’, and then pro­vide full de­tails about how the crimes were com­mit­ted.” It is un­der­stood that Zuma wants the state to cover his le­gal costs in the event of pros­e­cu­tion but that Ramaphosa is re­luc­tant to agree to this with­out co-op­er­a­tion from the pres­i­dent in nail­ing those who were in­volved in cap­tur­ing the state. The ne­go­ti­a­tions are fur­ther com­pli­cated be­cause Zuma has not yet been charged on any mat­ter in re­la­tion to state cap­ture. “It is ac­tu­ally quite sad that Cyril and JZ are ne­go­ti­at­ing this mat­ter in an­tic­i­pa­tion of charges be­ing brought against the pres­i­dent — with­out even know­ing what the charges will be and in which mat­ters,” said a se­nior ANC leader who is privy to the talks. Ramaphosa’s spokesman Ty­rone Seale re­ferred ques­tions to Luthuli House. ANC spokesman Pule Mabe did not re­spond. Un­der sec­tions 105 and 106 of the Crim­i­nal Pro­ce­dure Act, a per­son can en­ter into a plea bar­gain with pros­e­cu­tors if they con­cede crim­i­nal­ity, but such an agree­ment would need the ap­proval of a court. The deal could be over­turned if the per­son is found not to have told the full truth. Sec­tion 204 al­lows for in­dem­nity if a per­son who is crim­i­nally charged turns state wit­ness and tes­ti­fies against those who are co-ac­cused. Even then, in­dem­nity from pros­e­cu­tion would only be given if the per­son’s tes­ti­mony was found to be truth­ful. An­other op­tion Ramaphosa is pre­sent­ing to Zuma is for him to tes­tify at the par­lia­men­tary hear­ings on state cap­ture. A per­son who pro­vides full dis­clo­sure of crim­i­nal ac­tiv­ity to par­lia­ment un­der oath could be in­dem­ni­fied from pros­e­cu­tion on the ba­sis of the ev­i­dence they give. The per­son could still be pros­e­cuted on the ba­sis of other ev­i­dence col­lected by the po­lice or pros­e­cut­ing au­thor­ity, but not for any­thing they ad­mit to un­der oath. If Zuma opts to give ev­i­dence to par­lia­ment, he would have to get in be­fore the Gup­tas do so — and im­pli­cate him. The Gup­tas and Duduzane Zuma are ex­pected to tes­tify at the Eskom par­lia­men­tary in­quiry some­time next month. No date for their ap­pear­ance has been sched­uled yet. There is also a le­gal mine­field in terms of the tes­ti­mony Zuma gives to the ju­di­cial in­quiry on state cap­ture as he would have no le­gal pro­tec­tion for ev­i­dence he gives there. In terms of the le­gal costs, Zuma could be

cov­ered for crim­i­nal acts he com­mit­ted as pres­i­dent.

But Zuma al­ready has a moun­tain of le­gal bills for the le­gal ac­tion he pur­sued in re­la­tion to his cor­rup­tion case, which dates from be­fore he took the high­est of­fice. In De­cem­ber, the High Court in Pre­to­ria or­dered that he be held per­son­ally li­able for his “ill-ad­vised” and “reck­less” chal­lenge to the pub­lic pro­tec­tor’s re­port on state cap­ture.

The state of the na­tion ad­dress was post­poned and an emer­gency NEC meet­ing was called off this week to al­low Ramaphosa time to con­clude the talks.

Par­lia­ment’s pre­sid­ing of­fi­cers and op­po­si­tion par­ties are try­ing to make sure the bud­get is pre­sented as sched­uled on Fe­bru­ary 21. That would re­quire Zuma to re­sign and Ramaphosa to be elected pres­i­dent by the Na­tional Assem­bly by next week.

Yes­ter­day Ramaphosa was sched­uled to meet with the top ANC lead­er­ship to brief them on his ne­go­ti­a­tions with Zuma.

The Sun­day Times un­der­stands that the top six will then brief the na­tional work­ing com­mit­tee at 2pm to­mor­row.

At his meet­ing with Ramaphosa on Tues­day, Zuma is said to have made a num­ber of de­mands in ex­change for step­ping down, in­clud­ing that:

He be al­lowed to de­liver the state of the na­tion ad­dress;

He stays for the next three months;

The state pays his le­gal fees;

His fam­ily is pro­tected; and

His free higher ed­u­ca­tion pol­icy is re­tained.

An NEC mem­ber said Ramaphosa was tak­ing his time be­cause he did not want Zuma to drum up pub­lic sym­pa­thy when he is axed.

“He is go­ing to be fired at the NEC. He does not have much sup­port in the NEC. But he has sup­port in the ANC. What Cyril is try­ing to do is to avoid a sit­u­a­tion where Zuma is get­ting pub­lic sym­pa­thy.

“What Zuma wants is to cre­ate an up­roar and peo­ple to march in his de­fence. We will not al­low him to do that,” said an NEC mem­ber who was pre­vi­ously a staunch Zuma sup­porter.

The Sun­day Times un­der­stands Zuma’s back­ers have held meet­ings and strate­gised about how to block Zuma’s re­moval.

One of the pro­pos­als they will make to the NEC is that Zuma hand over his ex­ec­u­tive pow­ers to Ramaphosa with­out los­ing his job.

“We are call­ing for the Man­dela/Mbeki power han­dover. Ramaphosa must take over the man­age­ment of the state and Zuma must be­come a cer­e­mo­nial pres­i­dent. In that way we’ll avoid dis­con­tent be­cause Zuma still has sup­port within the ANC,” said one NEC mem­ber sym­pa­thetic to Zuma.

How­ever, other party lead­ers said Ramaphosa would never agree to that.

One na­tional work­ing com­mit­tee mem­ber said: “We are all in agree­ment that he must go. It is a mat­ter of what we are will­ing to give. The old man was re­sist­ing but then changed his tune . . . Now he is con­fi­dent again I hear. Maybe it’s nice to be in power.”

An­other NWC mem­ber said they all agreed Zuma should go but some “Zuma min­is­ters” were wor­ried about their jobs.

Yes­ter­day ANC chair­man Gwede Man­tashe called on peo­ple to give Ramaphosa time in his ne­go­ti­a­tions with Zuma.

“If the pres­i­dent of the ANC says ‘wait for me, I am still talk­ing to pres­i­dent Ja­cob Zuma’, there is no need to criticise him,” he told sup­port­ers in Mpumalanga.

Pic­ture: Esa Alexan­der

Pres­i­dent Ja­cob Zuma leaves the par­lia­men­tary precinct in Cape Town on Wed­nes­day af­ter his meet­ing with Cyril Ramaphosa and cab­i­net min­is­ters.

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