For a guy whose ambitions may reach to a future in the highest office, Justice Minister Lamola and his team are disappointing citizens, who are getting bored of watching the Zondo Commission on TV. That televised extravaganza has raised expectations. Every time Judge Zondo asks for an extension, it sounds like his final report won’t be forthcoming for many years. Zondo wants to “draw their fire”, so that when the real litigations begin, the web of relationships will no longer be in the shadows, but out in the open. State Capture is inter-connected and quite complicated, but the long and arduous de-briefing of witnesses is allowing those exposed to cook up many excuses.
I have noted down seven of these emerging excuses, while the “long arm of the Law” gets longer and longer:
1. The new (now not so new) NDPP Shamila Batohi keeps saying that they are busy preparing to put some of the accused on trial. Late in 2019 she said they only needed the extradition papers to be signed by the United Arab Emirates. Ah, but Shamila, isn’t Dubai one of those emirates? Do you think the Guptas won’t bribe the Emir of Dubai the same way that they bribed the President of South Africa? This excuse is getting tired.
2. Some say that there is a sequence of prosecution that puts Zuma first. It will be easier to prosecute the others once he is engaged in a trial, or even convicted. So he hands in a sick note at his Pre-trial and then dons a pair of sun-glasses on his return from spending some time at the beach in Cuba. The Stalingrad Defense Strategy was never easier or cheaper – just buy some dark sun glasses. His trial is scheduled to start in May and he is preparing his supporters for the worst – by telling them that he is not afraid of jail. Is that code language for a confession?
3. One wild card in all the delays is that Zuma is not the one at the top – that the arms deal might ultimately implicate Mandela. So to protect his good name (and maybe Mbeki’s too?) it is better to delay the corruption trial ad infinitum. Canadians have been shocked this week to learn that Jean Vanier, founder of l’Arche Community and something of a secular saint, has just been exposed for molesting eight women during his ministry. Only now after his death have these women dared to come forward. Are we ready for the shock of hearing that Madiba may have turned a blind eye to arms-deal corruption?
4. Then there is the risk of reprisals or “unrest”. The Minister of State Security has admitted that almost 200 spooks are still “on the loose”. She knows who they are because they are on her payroll, but she doesn’t know what they are doing, or who their intel is being reported to. Apparently they are not doing foreign espionage but rather spying on citizens? Different ANC structures are threatening to come to Zuma’s defence. I doubt that one day will pass during his jail term, that he won’t have visitors coming to pat him on the back. If delays are meant to create a cooling off period, these cases are still burning very hot.
5. Dudu Myeni played her full suite of four aces in one episode last week – race card, gender card, victim card and poverty card. She summed up this fifth excuse – that there really were no crimes committed, it was only political factions vying for supremacy. Since Zuma was removed and replaced by Ramaphosa, two distinct factions have emerged. “Unity” is code language for “gridlock”. According to Jesus, a house divided against itself cannot stand. Will this be the prevailing defense when some of these looters finally get to trial? “Yes, there is evidence, but it is not of crime – only of factional in-fighting. Law enforcement should not interfere in domestic disputes, only in crime.”
6. Another excuse is that certain court decisions must be made first, before tackling all of them at once. This is to say that State Capture is not just a batch of individual crimes, but a kind of organized or syndicated phenomenon. Zuma is more of a Godfather figure than just another one of the looters. So trials must be rolled out incrementally. For example, the court victory last Friday which declared the contract between Tegeta and Eskom illegal: will this now make it easier to proceed with other related litigations? The NPA may have a strategy that it cannot make public, but that sets out priorities in sequence?
7. The last excuse could explain why the EFF has made such a commotion of late about FW de Klerk’s lapse of memory. (For EFF leaders are in the prosecutor’s line-of-fire as well.) All the noise that they made about Inkandla had the clever side-effect of serving as a decoy for their own smallanyana skeletons in the closet. The complaint is that there are many apartheid-era criminals still at large. So the logic goes that it is not fair to start prosecuting those who have committed crimes since 1994, when all those who committed crimes before 1994 have not yet been convicted. The answer is that some were convicted, although not all. Others were offered amnesty for truth. But certainly this constitutes another distinct excuse.
Against this tsunami of excuses, can Lady Justice prevail? Or will these cases just be exposed by Zondo then basically pardoned? Is the thinking that public humiliation is a form of “indecent exposure” – adequate punishment in and of itself? So why spend years or even decades prosecuting officials for corruption and patronage?
Probably the biggest “win” would be to fix the system. Yes, the ruling party is broken and the economy is in bad shape. But at the root of this entitlement-sense-of-impunity is cadre deployment. As long as three of the top six are in each of the two factions, parliaments and premiers can remain stacked with members of the “fight-back faction” – who can keep Lady Justice at bay indefinitely.
The answer will be for Independents to start running in the 2021 elections, without party affiliation. And if a case now before the Constitutional Court clears the way for Independents to run in the 2024 elections, then watch this space! Remember that only 18 million of the Electorate voted in the 2019 elections. 19 million voting-age citizens did not vote. They withdrew their consent.
But that majority of the Electorate that excluded itself last year could rise behind Independent candidates who just want to represent their constituency in the National Assembly, not towing any party line. This is the best medicine for the malady that is weakening Lady Justice and disappointing the law-abiding citizens of this land.
Chuck Stephens works for the UNEMBEZA Desk as part of the Desmond Tutu Centre for Leadership. He writes in his personal capacity.