On Monday 6 April 2009, the Acting National Director of Public Prosecutions (NDPP), Advocate Mokotedi Mpshe, announced the National Prosecuting Authority's (NPA) decision to withdraw all charges against Jacob Zuma and to terminate the prosecution. This decision will be confirmed in court today.
Mpshe said the NPA's decision took into account all representations made, including those by legal representatives, which dealt with the following issues:
• The merits of the case against Zuma
• Any legal defences Zuma may have concerning the fairness of any trial
• The practical implications and considerations of a continued prosecution of Zuma
• The policy aspects militating against prosecution
The NPA found that none of Zuma's representations cast doubt on the merits of the prosecution's case, the prospects of a fair trial for Zuma, or raised practical obstacles to a prosecution. There remains therefore a case for Zuma to answer - the NPA accepts that.
However, Mpshe said that allegations of outside political influence on then-head of the Scorpions, Leonard McCarthy, had led to an abuse of the overall "legal process", albeit not of the prosecution process. He said that this abuse had undermined confidence in the impartiality of the legal process, which is a "constitutional value of supreme importance". It offended "one's sense of justice", and made it unfair and unjust on a "policy" level to continue with the prosecution.
The "abuse of process" is a reference to McCarthy's alleged willingness, for a political purpose, to change the timing of the reinstitution of charges against Zuma until after the ANC's December 2007 Polokwane conference.
Mpshe set out two categories of possible abuse of process:
1. a manipulation or misuse of the criminal justice process so as to deprive the accused of a protection provided by the law or take unfair advantage of the accused; or
2. where an accused is prejudiced in the preparation or conduct of his defence or trial by an unjustified delay or haste by the prosecution.
The question, he said, is whether a legal or judicial process designed to dispense justice with impartiality and fairness has been abused to give rise to unfairness or injustice. Whether or not a fair trial is possible is not the only test of the relevance of an abuse of process. Another is if it would offend one's sense of justice, integrity and propriety to continue with a trial.
Ultimately, said Mpshe, there must be something so gravely wrong that it would be unconscionable that a trial should proceed.
The practical question is, then, was it a sufficiently grave wrongdoing that McCarthy consulted outsiders, like ex-NPA head Bulelani Ngcuka, close to then-President Mbeki, on the timing of the announcement that charges were to be reinstituted against Zuma? Was this political strategy which was ultimately unsuccessful and affected one aspect of the conduct of the prosecution, sufficiently serious so as to remove all credibility from the overall legal process, albeit not the validity of the prosecution?
There is no suggestion by the NPA that evidence was withheld or manufactured. Nor has the NPA said that the strength of the case against Zuma is diminished, or that the possibility of a fair trial for Zuma had been affected in any way. A court has said there is sufficient evidence to require Zuma to stand trial. And Mpshe has not disagreed with the Supreme Court of Appeal's recent ruling that an improper motive for a prosecution is insufficient to render a prosecution unlawful.
The NDPP has a wide discretionary power to withdraw charges and discontinue a prosecution. But it is not an unfettered discretion: it must be a reasonable decision in the light of all relevant circumstances as set out in the prosecution policy. A court can review this decision.
Apparently relying on considerations outside this policy, Mpshe has concluded, against the advice of his prosecution team, that justifiable public interest in the prosecution of serious crimes is outweighed by "a compelling public interest which expresses a distaste and outrage for abuse of process by law enforcers who are expected to behave with absolute integrity, impartiality, fairness and justice".
Thus, McCarthy's alleged misuse of a small and ultimately inconsequential part of the legal process for an improper purpose is said to taint the entire legal process. Mpshe has therefore made a "policy" decision that "it would be unfair as well as unjust to continue with the prosecution".
Given the seriousness of the charges against Jacob Zuma - corruption in high office, by the person likely to be the next President - it is unclear that the alleged misconduct can outweigh the public interest in a court process to determine conclusively the truth of Zuma's guilt or innocence. It is not immediately evident that the remedy of a discontinued prosecution is proportionate to the alleged mischief that should undoubtedly be dealt with firmly.
Nor has the NPA clarified the evidentiary status of the tape recordings upon which it has based its decision, or the lawfulness of their possession by Zuma's legal representatives. It appears that only some of the recordings were also in the possession of the National Intelligence Agency (NIA). The NIA informed the NPA that it had obtained the recordings legally, and the NIA declassified certain transcripts of the recordings, only extracts from which were released to the public yesterday in the NPA's statement.
The NPA has apparently requested the Inspector-General of Intelligence to conduct an investigation into "any possible illegality surrounding the recordings". This matter and any misconduct inside the NPA should be vigorously investigated and appropriate action taken urgently.
The piecemeal manner in which the NPA has chosen to deal with these issues has unfortunately left many questions unresolved and has also posed a raft of new questions. Foremost among these is whether we will ever definitively know Jacob Zuma's guilt or innocence, and whether the NPA's unpersuasive ‘policy' rationale is indicative of another instance of inappropriate political pressure trumping purely legal considerations?
These doubts could have been pre-empted and more effectively resolved had the NPA opted instead to allow a court to make these determinations, as Idasa proposed last week. By avoiding the route of the greatest transparency and by not placing all these issues before a court to decide in an open and dispassionate manner, the NPA has succeeded only in compounding the sense of suspicion and mistrust of our democratic institutions.
Judith February is Manager of Idasa's Political Information and Monitoring Service.
Gary Pienaar is a senior researcher with PIMS.