In just nine days time, President Jacob Zuma will have to either make good on his promise in a signed legal affidavit to the Constitutional Court to appoint a new National Director of Public Prosecutions, or find a really good excuse why he cannot do so. On Friday, the North Gauteng High Court ruled that the National Prosecuting Authority, which this person will run, must turn over the Zuma Spy Tapes to the DA. So what's a President to do? It's worth examining his options. By STEPHEN GROOTES.
In a way, it is a huge testament to our system of government, with its checks and balances, its powerful personalities and sometimes meek officials, that Zuma finds himself in this position in the first place. For those who’ve been asleep for the last few years, the Zuma Spy Tapes are what was used by then National Prosecuting Authority (NPA) acting head Mokotedi Mpshe to justify dropping corruption charges against Zuma just days before the 2009 elections. Mpshe said the conversations between then Scorpions head Leonard McCarthy and former NPA head Bulelani Ngcuka were proof of a political conspiracy against Zuma. As a result, he withdrew the charges.
But the DA is now challenging that decision in court, and thus wants access to the “record of decision” that led to this outcome. Hence its demand for the tapes. It’s pretty obvious that once it gets the tapes, it will make them public. Why not? For an opposition party, it’s absolutely the right political thing to do.
Since 2009 Zuma has managed to really improve his grip on state power. Think of it like this, he appoints the head of the NPA. He has successfully managed to make the NPA argue (or else someone in the NPA is so stupid they can’t read the law) that he, Zuma, gets to decide whether the tapes must be handed over or not. He also has a grip on the other corruption-busting institutions. The Special Investigating Unit has not had a permanent head since December 2011. Read that again. 2011. Not 2012 – 2011. He also controls a fair number of people on the Judicial Service Commission, which appoints judges.
And yet, he still faces the prospect of these tapes having to be released. Just when he must appoint a new NPA head.
And the problem for that unfortunate person is that their first major decision could actually be whether to release the tapes, or to appeal this decision. If this person decides to release the tapes, they could well incur the displeasure of the person who has just appointed them. (Even thought it is very, very difficult for the President to then un-appoint them. Ask Thabo Mbeki and Vusi Pikoli.) If they decide to appeal, it will be obvious within two minutes that they are simply a political hack.
Zuma’s other problem is that he can’t be as cavalier with this NPA appointment as he was with the last one, Menzi Simelane. To not research your choice of NPA head once looks careless. To do it twice looks like you’re deliberately flouting an order of the Constitutional Court.
And back to that pesky promise he made. Because within that promise he also said “I am aware of the significance and need, and the Constitutional obligation to make such appointment in a rational manner as required by law”. And this where things get sticky. Up until now, one cynical view has been that Zuma could just appoint someone who is a political hack and who won’t reintroduce those charges. And then if the DA goes to court again, so what? He will surely survive another Constitutional Court dressing down. But now, this promise could change things because it means that if he is again reversed, then he really has deliberately broken his promise.
But his other option is even worse. If he doesn’t appoint someone by the end of this month, he will be breaking his promise, just a bit earlier. And in those documents in which he made his promise, he didn’t just say he would do it, he promised, signed and swore to do it. If you can’t trust a President who swears on a document to the Constitutional Court, then really, who can you trust? Menzi Simelane?
In the meantime, in the immediate political short-term Zuma is also going to have to deal with these tapes. He will probably get the acting NPA head, Nomgcobo Jiba, to appeal the High Court’s ruling immediately. That decision can always be undone. Handing over the tapes cannot. And if Jiba does formally appeal, because our courts now take so long, it will give the incoming person some breathing room.
But it still doesn’t solve Zuma’s main problem. How does he appoint someone who will fit what is now a legal definition of someone who is “fit and proper” to the job, and then rest easy at night knowing that they could be the person who reinstitute the corruption charges against him? Not easy.
In a way, despite the fact we’re still months away from the DA ever actually getting the NPA’s original decision in front of a judge, as a political investment this case has been well worth it. The Spy Tapes now have their own place in the litany of scandals around Zuma. Everyone knows what they are, and everyone knows that there really is no way he can argue they should not be released. And because of what these tapes actually are – proof that Zuma misuses intelligence agencies for his own political reasons – it’s an issue with resonance. Everyone in this country who uses a cell phone has a joke about their phone being tapped. So despite the fact that the DA has still not won on the law of its case, and have not actually managed to acquire the tapes and have the withdrawal of the charges reviewed, it’s certainly a political win.
As he laments his fate, it will be impossible for Zuma to blame anyone but himself. The way those charges were withdrawn in the first place was a scandal. It was a political conspiracy undertaken with a single desired outcome. And if there’s anything that Zuma has taught us over the years, it’s that two political conspiracies don’t make anything right. They just make it all so much worse. DM
Grootes is the host of the Midday Report on Talk Radio 702 and 567 Cape Talk, and the Senior Political Correspondent for Eyewitness News. He’s been part of the political hack pack since before the Polokwane Tsunami, and covers politics in a slightly obsessive manner. Those who love him have recommended help for his politics addiction. He quotes Amy Winehouse.
Photo: President Jacob Zuma waves at the crowd after arriving at the Medi-Clinic Heart Hospital in Pretoria on Thursday, 18 July 2013 to visit former president Nelson Mandela on his 95th birthday. Picture: Werner Beukes/SAPA