Weekend Argus (Sunday Edition)

Zuma must face courts

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IT HAS always troubled me. Why would former president Jacob Zuma so strenuousl­y resist facing many corruption and fraud charges for well over a decade? Why did he not allow the law to take its course by appearing in court to answer to those charges?

It is an unalterabl­e and inescapabl­e fact that he has spared no effort for many years to avoid going to court to face those charges.

Furthermor­e, it takes only average intelligen­ce to conclude that this vehement and protracted resistance by Zuma to avoid going to court is so worrying that it might even suggest that the main reason for it is simply because he knows that faced with the evidence presented by the prosecutio­n in a court of law, he is probably going to have a hard time rebutting it.

But there are further questions which are worrying. Has Zuma for all these years failed to realise that the only way in which he can demonstrat­e his innocence is in a court of law?

And that if this does not happen, because of his constant resistance and evasion, his integrity will not only always be questioned but will be seriously compromise­d by omission, even if he never appears in court?

For the public, I would gather, it means little that he pleads his innocence outside of court. Nothing less than going to court will resolve this matter, one way or the other.

The fact that such charges date back to the time he was deputy president of the ANC and the country, and continued to dog him over the years that he was president of the ANC and the country, I thought would make his willingnes­s to face such charges and clear his name in a court of law imperative.

I actually think that Zuma dug in his heels even more so to avoid going to court, especially after the Nkandla debacle and the protracted scandals involving the Gupta family.

In fact, many lawyers and political observers will concur that the latter scandals served to deepen interest in the outcome of these charges in a court of law.

Turning to former president Thabo Mbeki, I want to mention a few things which might suggest that he thinks or suspects that Zuma has charges to answer to.

After all, last year Mbeki’s office issued a statement urging that these deeply troubling matters about Zuma be settled in a court of law once and for all.

Since these are matters of huge public interest, and only for those reasons, I will reveal why I think Mbeki might suspect that Zuma indeed has charges to answer to.

I had to return to him for a second interview when I did the Kgalema Motlanthe biography.

It was during this second interview that he asked me if I had read the paper by Western Cape prosecutor Billy Downer, to which I answered that I had not.

He immediatel­y e-mailed me the paper which Downer had presented to the Middle Temple, the world’s leading jurist conference, in Canada in 2010.

In that paper, Downer basically argued that the decision by the then acting national director of public prosecutio­ns, Mokotedi Mpshe, to withdraw those charges against Zuma just weeks before the 2009 elections, was wrong because it was based on the timing of the decision to prosecute, referring to the Polokwane conference in which Zuma clashed with Mbeki for the presidency, and not the legal merits of the decision itself.

In fact, Downer pointed out, drawing on arguments against Mpshe’s decision by SC Wim

Trengove very soon after it was made, it was Mpshe, the then acting national director of public prosecutio­ns, who had earlier decided to prosecute

Zuma, which was itself based on the decision already taken by the then suspended director, Vusi Pikoli, to lay charges against him.

Based on the timing of the charges and not on its legal merits, he erroneousl­y withdrew those charges, which was calculated to clear the way untainted for Zuma’s presidenti­al inaugurati­on in 2009.

In fact, in announcing his decision, Mpshe specifical­ly refers objectiona­bly to “the timing of the charging of the accused”.

Not a word was uttered by him which refers to the legal demerits of the case as the basis for such withdrawal.

But my own view is that Mpshe was, behind the scenes, probably under huge and intimidati­ng pressure, likely from pro-Zuma forces, to drop the charges, leaving him with little alternativ­e but to do so without cogent legal reasons.

I often wondered whether Mbeki knew of anything that might implicate Zuma or if it was related to the fact that he fired him in June 2005 on the basis of the finding by Judge Hilary Squires that there was a “generally corrupt relationsh­ip” between him and Schabir Shaik, who was later convicted on fraud charges.

I thank Mbeki because if it was not for him, I would not have known of the Downer paper. From what I can gather, this Downer paper and the earlier arguments by Trengove will be important legal pillars if Zuma finally ends up in court.

The former leader of the DA, Helen Zille, told me in an interview that she was aware of this paper and that the DA would be leaning on it if they succeeded in finally getting Zuma to court.

While earlier, before his forced resignatio­n from office last week, I would have asked if the NPA would succeed in reinstatin­g those charges against Zuma in the light of the fact that he was the toughest, most battleworn, combative and indefatiga­ble post-apartheid ANC and South African president we have had, there is no doubt that his resignatio­n has fundamenta­lly altered the balance of forces in the country against him.

I now have no doubt that the NPA will soon reinstate those charges against him.

But I have a bit of sympathy for Zuma, because while in the final analysis the focus must be on him, it must be as much on what has happened to the ANC itself.

They not only elected Zuma but defended him even when the evidence against him was compelling, like in the Nkandla scandal, in which he looted the public purse so massively and unconscion­ably, something which even all the former white racist presidents of this country never did.

Ebrahim Harvey is a political writer, analyst and author.

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