The highest (double) standards? The need for clarity after the Zuma trial

THOMAS KOELBLE writes that a question mark hangs over the independence of key state institutions.

Jacob Zuma’s presidential inauguration, which followed his exemption from criminal prosecution in April, has – for now at least – concluded one of the most bruising fights for political survival in South Africa’s short democratic history. And, as we may be entering a new political era, it would be unfortunate if we failed to position ourselves in the wake of the events that unfolded in recent years.

The circumstances that led to the case against our new president being dropped leave many unanswered questions. Until the end, the prosecution maintained that their case against Zuma remained solid. In as far as the public had access to the content of the now infamous telephonic recordings between the presidency and investigating authorities, it did not seem as if they contained any new evidence that absolved Zuma from the charges against him. In addition, we still do not know whether the Zuma defence team obtained recordings of a sitting president legally. This in itself raises questions about the transparency of the process. And even though his financial advisor, Schabir Shaik has been released from prison under a cloud of controversy, the latter’s conviction for his role in the illegal movements of money for influence during the arms deal saga raised several questions about the new president’s judgement.

This chain of events may have left many a citizen confused about process and procedure in the quest for justice within our democratic dispensation. What are we to make of this? And how did we as a nation, with an otherwise impressive set of democratic institutions, end up with an outcome that arguably has hurt confidence in the impartiality of the broader political process?

There are surely strong positions to be argued in favour of everyone affected by this saga. Those sympathetic to Zuma suggest that ‘it was all a conspiracy’ against the president and that the decision to drop the charges is final exoneration and proof of his innocence. Others point to incompetence in the state prosecutorial office as a reason for the collapse of the case against Zuma. Others, opposing his discharge, will be keen to point to alleged political manipulation in Zuma’s favour by the new political elite. In any case, the decision to drop the charges by the National Prosecuting Authority (NPA) leaves many questions unanswered, which are likely to taint Zuma’s reputation for the rest of his political life, particularly outside South Africa.

The larger issue at stake is how the state and its judicial arm deal with the issue of influence-peddling and corruption. The concern is that the circumstances under which the decision was made not to prosecute the president will encourage a culture of non-transparency and unaccountability from the very top levels of the state downwards. Given the massive problems faced by the South African state in dealing with corruption at the lower levels of its administrative apparatus, surely the secretive way in which Zuma’s discharge has been dealt with sends a clear message – corruption charges can be made to ‘go away’ depending on your loyalties and position in the political system. This message must be a comforting one to the many thousands of so-called public servants who have been ‘feeding their bellies’ instead of providing services to those most in need. The decision not to prosecute may indicate to corrupt officials that it is possible to evade charges by means of extra-judicial avenues. After all, what is good for the president is good for the rest of the nation.

The questions here are fundamental to any solid commitment to a democratic state and system in which transparency and accountability rule. The decision not to prosecute after years of investigations and the spending of millions of rands worth of taxpayers’ money gives an impression of conspiracy, political intrigue and Machiavellian power politics. It may therefore have been a more productive outcome if the case had gone to court and had then produced a clear verdict – guilty or not guilty on the charges as presented. At least in that case the judiciary would have been seen to be functioning and justice served, even if one disagreed with the result. But in this case the doubts over Zuma’s innocence are likely to persist in the minds of many. The inescapable impression is that the state institutions responsible for the prosecution of high-ranking public officials have actually been taken hostage by the very elite that it is supposed to exercise oversight over. Such a captive oversight institution cannot and will not be able to do what it is supposed to do, namely provide sufficient disincentives for public officials to keep their fingers out of the state till.

Are we to view this debacle as the current political elite’s attempt to immunise itself from prosecution as long as it holds power? If so, it foretells a dire future for South African democracy. The fear of prosecution for one’s crimes, once political power has been lost or surrendered, becomes an incentive to hold on to power far beyond the point of electoral support, as has been the case in Zimbabwe under Robert Mugabe. This is precisely the conundrum that haunts so many other African states and emerging democracies – there is simply no way to remove an elite once in power.

The damage has been done. In the light of the revelations of the taped phone conversations, but also as a result of its decision not to continue with the prosecution, the NPA has proven itself captive to the whims of the dominant political elite at the time. It remains to be seen whether corrective tendencies, either in or outside of the ANC, have sufficient muscle to reverse the situation and bring about a shift in the political landscape, as well as in state institutions.

Thomas Koelble is a Professor of Business Administration and Director of Research at the University of Cape Town’s Graduate School of Business.

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