Spy Tapes, Scorpions, and Bribe Solicitation: Prosecutorial Decisions in South Africa

South African President Jacob Zuma is currently embroiled in a corruption investigation associated with the so-called Nkandla scandal. This is hardly the first time President Zuma has had to contend with corruption accusations, but he as so far managed to escape unscathed. One of those earlier incidents involved allegations that President Zuma received bribes from a defense contractor, but the National Prosecuting Authority (NPA) dropped its investigation of those allegations in 2009. In explaining his decision to drop the investigation, Mokotedi Mpshe, the acting head of the NPA, cited “collusion between the former heads of the Directorate of Special Operations (DSO) and NPA to manipulate the prosecutorial process.” The evidence of this ostensible collusion? Wiretapped recordings of conversations between a former NPA head and then-DSO head Leonard McCarthy, who was responsible for directing some of the investigation into President Zuma. Mpshe claimed that the recordings, which have since become known as the “spy tapes,” showed an “abuse of process” via interference in the timing of the prosecution, forcing him to end the investigation.

This 2009 case has been in the news again, both because of the current corruption allegations against President Zuma, and also because the South African Supreme Court of Appeals recently ordered the NPA to hand over the spy tapes and associated documents to the opposition Democratic Alliance. Although the audio recordings themselves have not been made public, excerpts from their transcripts can be read online. From these excerpts (which are more extensive than those previously released in 2009), it appears the NPA’s decision to drop the case against Zuma was wrong-headed.

There are two key questions here: First, was there political manipulation of the Zuma prosecution? Second, even if there was, is that sufficient justification for Mpshe’s decision to drop the case?

  • The answer to the first question is probably not. It is true that McCarthy’s behavior on the tapes hardly casts him in a flattering light: He seems to have had the political implications of the Zuma case in mind, for example in his repeated discussions about how to time the announcement of the new charges so as to maximize the damage they would cause to Zuma in his leadership fight with then-president Thabo Mbeki. But it was the NPA, not the DSO, which handled the prosecution, and none of the information thus far revealed shows that McCarthy influenced the NPA.  As the other man on the spy tapes recently made clear, Mpshe ultimately made both the decision to prosecute and the decision as to when to announce the prosecution.
  • Second, and more importantly, even if McCarthy had influenced the prosecution in some way, that does not mean the prosecution was legally illegitimate and had to be dropped. In National Director of Public Prosecutions v. Zuma (a pre-spy tapes case from 2009), the Supreme Court of Appeals held that a “prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent. The motive behind the prosecution is irrelevant.” Mpshe has always claimed that the NPA “acted properly, honestly, fairly and justly throughout”—in other words, it would seem the NPA had “reasonable and probable” grounds for prosecution, therefore meaning the prosecution was not wrongful.

One could respond to these points by arguing that even if Mpshe was not obligated to throw out the charges, he still within his prosecutorial discretion to do so.  However, though such discretion is important, Section 179 of the South African Constitution requires him to obey South Africa’s established prosecution policy.  It is not immediately obvious that his explanation fits within the policy; if anything, the serious nature of the alleged offense and the importance of the figure involved would indicate that prosecution was in the public interest–which the prosecution policy makes the primary factor to consider when deciding whether to prosecute a “provable” case. Since a 2009 memo sent to Mpshe by a senior prosecutor in the NPA claimed that there was a strong case that Zuma was at the center of an “overriding and pervasive scheme of corruption,” it seems likely the Zuma case fell within the “provable” range. Additional internal NPA documents support this idea.

At this stage, it seems that dropping the 2009 investigation was an error and a missed opportunity. With the NPA is even weaker than it was in 2009, it seems unlikely it will zealously reopen and prosecute the case.  That said, given this new evidence that the NPA made a mistake, though, perhaps it’s time for the courts to hold Mpshe or the NPA to account for their failure to prosecute.  Without some sort of remedy, the tenure of President Zuma–a man who thinks corruption is only a crime in a “Western paradigm”–seems to be in little immediate risk.

5 thoughts on “Spy Tapes, Scorpions, and Bribe Solicitation: Prosecutorial Decisions in South Africa

  1. I was working for the UNODC Regional Office for Southern Africa based in Pretoria (RSA) in the period 1999- 2004 and managed two important international projects: 1) a first corruption assessment in South Africa on the basis of which the Anti-Corruption Strategy was developed, and 2) the establishment within SADC of the Southern African Forum Against Corruption,which in 2005 adopted the SADC Protocol against Corruption. It was a period when the Government of South Africa (Mbeki Government) was a regional leader.in the anti-corruption initiatives and itself much committed to institutionalizing and strategizing the anti-corruption approaches in South Africa. At that time the NPA was very much in a leading role in criminalizing corruption and a number of new methods were introduced in the South African legislatiion and anti-corruption strategy (from money laundering to asset forfeiture). It indeed looked like a very serious endeavour.
    Yet, even at that time institutional turmoil was experienced when the targets of anti-corruption talk and investigation were some leading politicians, including Zuma who later became the President of South Africa. ANC at that time was not quite ripe to test its own commitment to anti-corruption on its own top cadre.
    I am sad to appreciate that a “long march to integrity” is still in its initial phase.

    Ugi Zvekic

  2. Katie — I really appreciate that decided to tackle this story and to do so in a thoughtful and analytical manner. I’ve always been intrigued by corruption in the international arms market, and there are few stories more important than when that corruption ensnares a sitting head of state. All that aside, your post stirs up in my head the age-old debate about the virtues and vices of prosecutorial discretion. Surely it’s a good thing when the criminal process is used to target corrupt members of a ruling political party. If there is sufficient evidence of corruption to warrant prosecution, then it would seem that prosecution is a good thing. But do our feelings about that prosecution change when there is a possibility that the prosecution is being driven in part by political motivations or being carried out institutions captured by a competitor party? If there is sufficient evidence of corruption, should it matter that there is also a political motivation? And should we be worried that where there is a political motivation, the prosecuting authority is more likely to proceed with a prosecution on thinner evidence? If that’s a real problem, how do we ever police the role of politics in prosecution? Will it ever be possible to scrub political considerations from the minds of prosecutors wielding tremendous discretion? Or is the possibility of political influences on prosecutions a necessary byproduct of prosecutorial discretion?

    I know that’s an incredibly long list of difficult questions without any answers. The reason for that is simple: these are incredibly difficult questions to which I do not have have an answer. I just wanted to thank you for writing a post that prompted me to sit down and consider these big pictures thoughts for a little bit. Great job.

    • All these are important observations. I have a similar ambivalence about those cases in which the target of an investigation/prosecution appears genuinely corrupt, but the investigation/prosecution itself seems politically motivated, at least in part.

      That said, I’m not sure we actually have evidence in this case that the McCarthy or anyone else involved was targeting Zuma for political reasons (in the sense that they were Mbeki supporters and just wanted to damage Zuma politically). Yes, it seems they may have given (perhaps improper) consideration to how the timing of various announcements might play out politically, but I think that’s quite different from those cases we’ve seen elsewhere in which the targets appear to have been _selected_ in order to damage them politically.

      Might it also be possible that the discussions of strategic timing in this case were at least in part about protecting the investigation itself? That is, might McCarthy and others have been trying to time the announcements in such a way that it would be more difficult for Zuma or his allies to scuttle the investigation? Of course it didn’t work — indeed, it seems to have backfired — but is it possible that was part of the thinking? And if it was, would _that_ sort of strategic calculation be OK?

  3. I really enjoyed this post Katie. I wanted to echo Jordan’s concerns regarding the extent to which we should be concerned about politically motivated prosecution (if at all), so long as the underlying conduct truly was corrupt. An interesting dimension of this case for me is the fact that while we may be somewhat uncomfortable with the suggestion that prosecutors are weighing the political impact of their decisions when deciding whether or not to prosecute a politician, we’ve also seen some instances in which this kind of discretion is precisely what makes an effective prosecutor (for example, there have been several examples where prosecutors have been deemed to be “too aggressive” and eventually unsuccessful for failing to take into account the political impact of their actions). Therefore, to add to Jordan’s list of difficult questions without answers, given that we’ve seen that both sensitivity and tone-deafness towards politics can negatively impact the effectiveness of anticorruption officials, do we think there’s any way to formalize when and how prosecutors should be able to take politics into account?

  4. You all raise good–and difficult questions. My first inclination is to side with the idea that where legitimate corruption of a significant scale exists, politics playing a factor shouldn’t disqualify a prosecution from being seen as legitimate. On a practical level, trying to parse what the exact motivations are (as Matthew’s comment alludes to) can be challenging; on a theoretical level, it’s still corruption that should be dealt with (the “don’t let the perfect be the enemy of the good” concept). I recognize that that approaches raises its own host of concerns, and I do qualify that statement with “corruption of a significant scale” because the “smaller” and the more common amongst all figures the corrupt act is, the more the cost-benefit scale might tip in the opposite direction–it might be too easy a weapon in political gamesmanship without having enough deterrent effect (I’m not certain of that, but it’s just something I’d want to consider further before reaching a decision).

    I think it’s worth reiterating a point I tried to get at and Matthew clarified: the tapes speak to political considerations in regard to the timing, not necessarily the prosecution itself–which, for me, means for this particular case we don’t even have to answer these difficult questions. They are certainly worth considering, though!

    Ugi, thanks for weighing in with the perspective of someone who’s worked in South Africa.

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