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.