Will cadre deployment grind the wheels of justice to a halt for Zuma?
Three weeks before South Africa goes to the polls, the ANC has brought us to the brink of a constitutional crisis.
If the National Prosecuting Authority (NPA) drops the charges against Zuma because he produces evidence of political manipulation in the NPA by ANC cadres loyal to Thabo Mbeki, it will expose the grave damage the "cadre deployment policy" has done to the South African state. In fact, the cadre deployment policy will have plunged our country into a constitutional crisis and severely damaged public confidence in the rule of law.
The independence and integrity of the NPA is a pre-requisite for upholding the Constitution's core value of equality before the law. The NPA must impartially prosecute anyone against whom they believe there is a case that can stand up in court.
Until Zuma handed in his secret dossier of documents and tape recordings recently, the NPA had stated repeatedly that Jacob Zuma had a strong case to answer on charges of fraud, corruption, racketeering and tax evasion.
Zuma's legal team is not trying to prove him innocent. They are trying to keep him out of court. And they are doing so by attempting to prove that the NPA cannot fulfil its constitutional mandate in respect of Zuma because it acted as Mbeki's agent in the internal battle for control of the ANC. If this is established, Zuma's legal team believe the NPA will be too compromised to continue. If the NPA concedes Jacob Zuma's argument, it will lose all credibility and become effectively paralysed. If the NPA has allowed itself to be politically manipulated, how can we have any confidence in any case it prosecutes?
The wheels of justice will grind to a halt because the NPA is stuck in a toxic mud pit of the ANC's making, and it cannot get out clean.
How did it get stuck? To answer that question, we need to go back to 1997. It was in this year, at the ANC's national conference in Mafikeng, that the ANC's National Working Committee (NWC) was given a mandate to deploy ANC cadres to all state institutions, including the judiciary, the public service, local government administration, statutory bodies, parastatals, the security forces, the central bank and the public broadcaster.
In any constitutional democracy, it is essential that all these institutions are politically independent, not mere extensions of the ruling party. If this principle is not observed, power abuse, corruption and criminalisation of the state become inevitable. Cadre deployment (or cronyism) is the primary cause of the "failed state syndrome" so tragically prevalent on our continent. Its ultimate outcome is Zimbabwe.
The ANC's 1997 resolution set South Africa on the road towards the failed state. It also destroyed any claim the ANC may once have had to democratic credentials. The ANC resolved to establish structures to ensure that its "deployees" remained "informed by and accountable to" the ANC. Cadres "in whatever sphere of state or society" were bound to defend and implement the will of the ANC leadership with "maximum political discipline". In other words, state officials were instructed to implement ANC decisions rather than fulfil their obligations under the Constitution. If they acted independently, they would be fired (as Vusi Pikoli, the former National Director of Public Prosecutions, learnt when he refused to drop the charges against Jacob Zuma). The crucial concept of the separation of party and state died when that 1997 resolution was adopted. Without that foundation, we cannot call ourselves a constitutional democracy, even though our Constitution, on paper, has been called "one of the best in the world".
While the ANC has failed to deliver services, it certainly has succeeded in its plan to turn institutions of the state into extensions of itself. Political loyalty determines "deployment" and promotion, not effective performance. And this is one of the key reasons why the ANC is failing at every level of governance.
It is also the key reason why the internal power battles in the ANC are so intense. Whoever is elected to lead the ANC has unsurpassed control firstly, over those constitutional institutions designed to limit the ruling party's power, and, secondly, to create a patronage network of loyal acolytes to entrench power and reap the spoils of office.
The real purpose of cadre deployment went undetected for a long time because it was disguised by the fig-leaf of affirmative action. Now, most people see it for what it is: a means to centralise power and control, erode the distinction between party and state, accrue wealth often by corrupt means, destroy political opponents, and subvert the Constitution. This is the tragic cycle of the failed state: cronyism, corruption, criminalisation.
Cadre deployment is the reason why the contest between the Mbeki and Zuma was so fierce in the run-up to Polokwane, and why Mbeki apparently abused state institutions to fight his political opponents.
Polokwane was a do-or-die battle for both Zuma and Mbeki: Zuma knew that if he lost the presidential race, he wouldn't be able to abuse his power (and use his deployed cadres) to avoid going on trial for corruption. If Mbeki lost, he knew that the power abuse and corruption of a range of other government leaders would be exposed.
State institutions became tools in an internal party conflict between Mbeki and Zuma. The deployed cadres who lead them were used to fight battles on behalf of their political masters and persecute their political opponents.
That is what appears to have happened in the NPA. Apparently, the tapes in Zuma's possession (which he is reportedly using to blackmail the NPA) reveal that Mbeki loyalists like the former head of the Scorpions, Leonard McCarthy, and the former National Director of Public Prosecutions, Bulelani Ngcuka, were central to the political machinations against Zuma. Should these tapes be played in open court, they will apparently demonstrate that the NPA was nothing more than an extension of the Thabo Mbeki faction, acting on instruction to take out Zuma and destroy his reputation. This is what they set out to do.
McCarthy has since moved on, with a leg-up from Mbeki, to a lucrative post as head of the World Bank's anti-corruption unit. Ngcuka, whose wife Mbeki appointed Deputy President after he fired Zuma, has also since left the prosecuting authority. But their actions have apparently mired the NPA.
Although he too was a deployed cadre, Vusi Pikoli (the man appointed to succeed Ngcuka) managed to put his loyalty to the Constitution ahead of his loyalty to the ANC. He refused to take sides in the ANC's factional war, and he paid the ultimate price. Both the Mbeki and Zuma factions got rid of him when he refused to do their bidding. First President Mbeki suspended Pikoli because he issued an arrest warrant for Jackie Selebi (a close Mbeki ally) on corruption charges. Then President Motlanthe fired Pikoli because he refused to withdraw charges against Jacob Zuma. Other feeble excuses were given as the "official reason" but failing to follow a political instruction was the real reason.
The next step in the manipulation of state institutions was the premature and unlawful release from prison of Schabir Shaik (as part of a deal to prevent him giving evidence against Zuma). With the Scorpions disbanded, the Vusi Pikoli dismissed, and Schabir Shaik silenced, the case against Zuma could not last.
The final abuse of our Constitution to defend one man, will be when the NPA drops the charges. And you can be sure that if Zuma becomes President, he will deploy a compliant new National Director of Public Prosecutions to ensure that the charges are not reinstated. The fact that the President has the sole power to appoint the National Director of Public Prosecutions is a key weakness in our Constitution. This is why the DA has submitted a Private Members Bill to change the legislation that governs the appointment of the NPA head. If Zuma believes he was the victim of a conspiracy involving former President Mbeki and Bulelani Ngcuka, he should put his weight behind this Bill to ensure that this never happens again. But he won't do that because, for him, capturing the presidency is a way to ensure that his own cadres are deployed to key institutions of state to protect him.
If the NPA drops the charges either because there is evidence that demonstrates political motives behind Zuma's prosecution, or because Zuma has proof Mbeki and others benefited from the arms deal, then it will be complicit in a cover-up. Such a cover-up would seriously undermine the rule of law, the Constitution, and those institutions whose independence is guaranteed by the Constitution. It would greatly exacerbate the constitutional crisis.
The DA is not going to take this lying down. Last week, I made representations to the NPA in respect of the Zuma matter. This is not, as one analyst has said, because the DA is using legal means to a political end. This is not a witch-hunt against one man. If the NPA drops the charges because of a back-room deal with Zuma it will have ramifications for every South African. It will set a precedent that the powerful can escape justice simply because they hold power. This is why the DA will use every means at its disposal to stop any abuse of power in this matter.
History will show that the root cause of this constitutional crisis was cadre deployment. It is time for the Constitutional Court to evaluate this policy and declare it unconstitutional. That is the only way to prevent ANC manipulation of state institutions. It is the only way to spare the rest from the paralysis which has gripped the NPA. And it is the only way to restore the rule of law in South Africa.
For that reason, I am currently seeking legal advice, and I intend approaching the Constitutional Court with a view to having cadre deployment declared unlawful and unconstitutional. I believe that this is the only way to get us out of the quicksand, and get the wheels of justice turning again.This is the text of a speech prepared for delivery by Democratic Alliance leader, Helen Zille, at Kelvin Grove, Cape Town, April 1 2009
Taken from Politicsweb here!