A despot’s time to face democracy
Events of the past week have proven that the Zondo commission investigating state capture cannot conclude its work without former president Jacob Zuma’s honest testimony.
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1 February 2021
Contempt. This is what former president Jacob Zuma apparently felt for democratic South Africa’s foundational document, the Constitution, and the vision and standards it sets out for its “number one” citizen, the president.
Sneering contempt is also how Zuma seems to have regarded the rule of law and the millions of South Africans from whom almost R9-billion rands was allegedly squirrelled away from the State Security Agency in his name. Likewise the Commission of Inquiry into State Capture that is investigating the corruption, kleptocracy and rent-seeking that allegedly defined Zuma’s nine years in office, according to explosive evidence heard last week at the commission.
But contempt (of court) is what Zuma will be in if he carries on ghosting the commission or refuses to be transparent with it when he finally makes his reappearance following a withering judgment handed down by the Constitutional Court on 28 January.
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Zuma and his obstinate strategy of lawfare encountered a series of setbacks last week at the commission, whose chairperson is Deputy Chief Justice Raymond Zondo. Witnesses including former Cabinet minister Sydney Mufamadi, acting director general of the SSA Loyiso Jafta and “Ms K”, a witness whose identity had to be protected, detailed how billions from state coffers was hoovered up by spies with the intention of consolidating and protecting Zuma’s hold on power. None of this money was accounted for, and some of these spies may have been doing nothing more than enriching themselves and a coterie of people around them.
It is alleged that millions more had been set aside and subsequently delivered to Zuma on a monthly basis by former intelligence minister David Mahlobo. The amounts ranged from R2.5 million to R4.5 million and were delivered in cash. The money was allegedly used to feed the inexhaustible black hole that appears to be Zuma’s personal finances. And there was more cash to create a personal army of spooks, informants and bodyguards that was as nefarious, illegal and anti-democratic as it was riddled with ineptitude and corruption.
Ms K, an official sent in to audit and clean up the financial mess at the SSA, told Zondo how, in one instance, a paranoid Zuma had insisted on setting up a toxicology unit – parallel to the one already provided by the police – to guard and test his food and drinks at a cost of almost R2 million a month. All the unit appeared to have uncovered were some expired fizzy drinks.
Suspicions confirmed
Last week’s revelations, if true, go some way towards confirming various suspicions South Africans have long held about Zuma: that he is a paranoid, venal, self-obsessed man who does not understand the value of money and considers himself above the law. His default setting is of an authoritarian who allegedly took whatever he wanted – and then took some more – rather than a president who appreciated how democracy based on the rule of law and government accountability should function. He seems to think there is nothing wrong with breaking the law.
This contempt for the law had seen Zuma obstruct the search for answers at the commission – which he was forced to set up following former public protector Thuli Madonsela’s State of Capture report on his relationship with the Gupta family, his rent-seeking cronies – when he did appear before it in July 2019.
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Then, he was amnesiac and obstinate. Constitutional Court Justice Chris Jafta, in last week’s unanimous judgment against Zuma in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State vs Jacob Gedleyihlekisa Zuma, noted that after giving his narrow version of events, Zuma objected to the manner in which he was being questioned at the commission and then “refused to answer questions that made him uncomfortable”. He then “unilaterally decided to withdraw from further attendance”.
For the next year and a half, Zondo treated Zuma with patience and kid gloves to try and get him back in the witness stand. In response, Jafta noted, Zuma refused to submit affidavits, as agreed upon, and “took umbrage” with and “berated” the commission whenever it attempted to set dates for his reappearance. He “dared” Zondo to “take whatever steps he considered appropriate” to bring him back to the witness stand. It was “remarkable” behaviour that was “anti-ethical to our Constitutional order”, Jafta observed.
Following an unsuccessful attempt to force Zondo to recuse himself, and more “berating”, Zuma then walked out of the commission without the chairperson’s permission in November last year. This precipitated the commission’s direct application to the Constitutional Court to compel Zuma to appear before it, thereby also circumventing another bout of lengthy Stalingrad lawfare.
No escape clauses
The country’s highest court has done so. Jafta’s judgment also made clear that “compliance” with the ruling “does not mean that the witness may just show his or her face at the commission and thereafter leave at a time convenient to him or her”. Zuma, Jafta confirmed, must attend the commission in good faith.
The former president also does not have available to him the right to remain silent, which may be exercised by an arrested and accused person in a criminal trial but not a witness at a commission of inquiry, Jafta found. Zuma’s counsel, advocate Muzi Sikhakhane, had previously threatened that he would bring his client to the commission but that “he will exercise his right to say nothing”.
Jafta further clarified that Zuma would not be able to take the route of his crony, former South African Airways chairperson Dudu Myeni, who appeared at the commission and refused to answer questions by simply stating that an answer may incriminate her.
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“Privilege against self-incrimination is not there for the taking by witnesses,” Jafta found. “There must be sufficient grounds that in answering a question the witness will incriminate himself or herself in the commission of a specific crime.”
Jafta found the witness had to demonstrate how an answer to a question would breach the privilege against self-incrimination and persuade the chairperson that they could not answer that specific question.
After last week’s testimonies, Zuma, already implicated by more than 30 witnesses at the commission, will have many more questions to answer – or try to evade, as has been his stratagem – about everything from Cabinet appointments to tender corruption and illegally detaining one of his estranged wives in a series of “safe houses”, at the cost of taxpayers, after accusing her of attempting to poison him.
Dishing out money and dirt
The evidence building against Zuma is astonishing. The numbers are staggering. According to Loyiso Jafta, R125 million was unaccounted for in the 2017-2018 financial year. “Upwards of R200 million” was spent on Project Justice, a covert operation intended to co-opt members of the judiciary and bribe them to hand down judgments favourable to Zuma in the multitude of cases in which he is embroiled.
Yet, according to the acting director general, “there was no evidence that money allocated for judges reached its final destination”. In trying to follow the money, Jafta confirmed, there was “strong circumstantial evidence” that only one judge may have received cash, but not much else. That investigation is continuing.
He also conceded how onerous the task of trying to track down money and its repayment had been, as in many instances oversight was poor and the spooks often claimed they could not give detailed, itemised expenditure because of the clandestine nature of their work.
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“It’s like money just gets dished out… You can have R19 million, you can have R3 million… and people just took the money,” an incredulous Zondo observed at one point during the acting director general’s testimony.
What is clear from the testimony, including that of Mufamadi, who led a high-level review panel investigating the SSA, is that Zuma allegedly spent an inordinate amount of time and resources not on running the country but on countering opposition to him.
This included attempts to infiltrate, destabilise and co-opt the natural emergence of social movements in democracies, such as the Fees Must Fall student movement, and the discrediting and destruction of ANC factions in the party that opposed him. The latter raises questions over the validity of his 2012 re-election as ANC president.
For himself at all cost
Rather than focusing South Africa’s intelligence on internal safety and security to pre-empt phenomena like xenophobic attacks and cash-in-transit robberies, Zuma allegedly concentrated these resources on his personal protection. People died while Zuma allegedly protected his own power.
Rather than working towards good governance and a functioning state to get good press, Zuma sought to allegedly infiltrate or buy the media. More than R20 million was paid to the African News Agency owned by Iqbal Survé (who also owns the Independent Media Group) to allegedly teach spies “multimedia skills”. On 29 January Ms K testified that other journalists may have been paid off in exchange for positive coverage of Zuma.
Zuma also allegedly sought to destroy South Africa’s hard-won democracy and the lawful functioning of the state with his attempts to undermine the independence of the judiciary by attempting to buy judges. This was done “to ensure harmony between state and the justice fraternity”, according to spies interviewed by Ms K.
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Rather than ensuring a functioning government that delivered services like water and electricity to impoverished communities, who often rely on protest or the courts to compel an errant state to do its job, Zuma sought to infiltrate and buy them.
Rather than ensuring his actions were accountable and transparent so that no further cases involving him ended up in court, Zuma allegedly sought to buy judges.
If these allegations are proved, or conceded, they will confirm Zuma is no democrat, merely a despot.
In light of the Constitutional Court judgment and the bombshells that suggest a president gone rogue, Zondo may just have bought his commission the time he will require for an extension to its work, if required.
The evidence alleging that Zuma has broken the law and subverted the Constitution on numerous occasions is just too overwhelming for him not to appear before Zondo.
