Should the National Prosecuting Authority drop charges against Jacob Zuma? South Africans are divided on this question, as are the country's political parties. The ANC believes these charges should be dropped because they have the potential to destabilise the country.
But is this a valid rationale? Should justice be sacrificed because an institution, its leader or its supporters can create mayhem? Is might then not superseding accountability in our democracy? Is justice not being applied selectively and will democracy not be delegitimised as a result?
The opposition parties believe that the charges should stand. Helen Zille suggests that if the representations made by Zuma's legal team are so significant, why can't they be heard in a court of law? She and others argue that if the NPA decides to drop the charges, it will have succumbed to political pressure. But is this a fair conclusion to arrive at? What is the purpose of providing an accused with the right to make representations to the NPA if there is no possibility that the prosecutors can, as a result, change their mind? And if Zuma was an ordinary citizen, would the opposition hold the same view?
Herein lies the dilemma of the situation we confront. If, as is alleged, Zuma's legal team has put forward evidence that there was political manipulation of the institutions of prosecution, and if this case was driven by political considerations, have Zuma's rights not been violated?
More significantly, had he been an ordinary citizen, would the case not fall away under similar circumstances? Is this not what our and other democratic legal systems would expect?
But if the NPA were to drop the charges, a significant proportion of the population would assume that the NPA had been politically pressured. As a result, its legitimacy would be severely eroded and our democracy and credibility would suffer. Should Zuma the presidential candidate not be concerned about this?
After all, if this were to happen, the "corruption cloud" would forever hang over his head, and his political administration could become crippled. The corruption charges could do to the Zuma administration what the arms deal did to the Mbeki one. Is there not a serious tension that has developed between Zuma the president and Zuma the citizen?
How to get out of this dilemma? Zille, other opposition politicians and a number of political analysts would argue that the NPA should consider the political consequences of its action and not drop the charges.
But should the NPA be considering political issues in its decision-making? Is this not a violation of its mandate? Should the decision-making of its prosecutors not be simply determined by the legal evidence in front of them?
The formula to this seemingly indissoluble dilemma is transparency. The NPA can go ahead and make the decision on the basis of the evidence in front of it.
But it must also be transparent about its decision-making and the evidence that compelled it to drop the charges. This would then not only enable the public to understand the decision-making within the NPA, thereby mitigating the effect on its legitimacy, but it would also expose the manipulation of political institutions by those in power.
The path would be open for charges to be laid against others who have violated the oath of their office. And because there would be consequences for the abuse of power, lessons would be learnt by our political elite.
Accountability of political elites to their citizens would, as a result, be enhanced, and democracy would be the ultimate beneficiary.
Obviously, in this case, questions would be asked about how Zuma's legal team happened to come by the evidence. Was it leaked by intelligence officials? Was the intelligence apparatus eavesdropping on the NPA and its officials? Could it have even been bugging the president? If any of this is true, should it not also be exposed?
After all, it raises the issue of where the constraints on our state institutions are. If institutions that are meant to protect us can act against others in the state with such impunity, how easy is it for them to abuse the rights of ordinary citizens?
This case would also bring to the fore, in the most graphic of ways, the dangerous consequence of mindlessly deploying cadres to state institutions.
In addition, if the charges are dropped, Zuma the presidential candidate would still need to do something more. His legal woes would have gone, but the political cloud over his presidency would still remain. This would be because he would have got off on a technicality.
Proving that there was political manipulation of the institutions of justice does not prove that he is innocent of the charge of corruption.
And while the distinction might not matter to Zuma the citizen, it should matter to Zuma the presidential candidate. The only way out would be for him to take the nation into his confidence, clarify his relationship with Schabir Shaik and come clean on what transpired. Once again, transparency would be the answer to the president's woes.
Is it not time to clean the rot out of our political system? Should we not do this through respect of our constitution and observance of the rule of law? Let the NPA make the decision that it needs to on the basis of the evidence in front of it. But demand transparency. For it is only transparency that can protect the future of our democracy whatever the sins of our political leaders.
By: Adam Habib
This article first appeared in The Star on March 31, 2009.