Zuma, Malema & the scales of justice

The one thing Jacob Zuma learnt from his time as an accused person, was that the most powerful state institution is not the military or any of the intelligence agencies. The National Prosecuting Authority, like the Federal Bureau of Investigation in the United States under J. Edgar Hoover, can be used as a political weapon. In the right hands, it can uphold the scales of justice; in hands which can be manipulated for political purposes, it can unleash state power against any perceived enemy.

Zuma firmly believed that he was a victim of abuse by state institutions, particularly the NPA, which identified him as being a party to corruption in 2002 and then pursued him through the media for three years before charging him in 2005. He was hauled before the courts several times in a stop-start case which dragged on for four years.

Although Zuma never denied accepting money from his former financial advisor Schabir Shaik, his legal defence was primarily built on the basis of the political conspiracy that state institutions had pursued him for political purposes. The political power battle between Zuma and former President Thabo Mbeki created the framework for the legal battle, and the extensive support campaign which was mounted around Zuma's defence had sufficient ammunition to float the conspiracy theory.

In the end, that is what resulted in the NPA withdrawing the case against him. The merits of the case were not a factor, because they never went far enough to be tested before the courts. The case was withdrawn based on representations made to the NPA, which included the controversial "spy tapes" with recordings of alleged conversations between individuals plotting the prosecution of Zuma.

The representations also included submissions by the ANC and SA Communist Party, also explaining how the prosecution of Zuma had been compromised due to political conspiracy against him, and warning that continuing the case would bring mass protest action and instability to the country.

The Acting National Director of Public Prosecutions at the time, Mokotedi Mpshe, capitulated to the political pressure, which was formidable at the time, just a month before the 2009 general elections, in which Zuma was at the top of the ANC's ticket. It marked the end of a clumsy case, which started messily and hurtled from "one disaster to another", to quote one of the presiding judges, Herbert Msimang.

The reason for this clumsiness was not a lack of evidence - there were truckloads of documents from the Shaik and Zuma cases - but rather that there were clearly external forces impacting on the case which caused "abnormalities" in the prosecution. The ability to show the interference of those external forces was enough to finally get the NPA off Zuma's back forever.

A bizarre twist of fate will now see expelled ANC Youth League ex-leader Julius Malema walk a similar path as Zuma, his former hero-turned-nemesis. The charges of fraud, corruption and money laundering will, in all likelihood, trap him in the justice system for several years during which time he will allege that he is being pursued for political purposes and that he is the victim of abuse of state power.

But just like the Zuma case, the prosecution is making errors and there are already signs that they are acting under pressure. Few people, even those who loathe Malema, would believe that the Hawks coincidentally finalised their long-running investigation against him at the very time when he became perceived as a serious threat to the state and Zuma's campaign for re-election in the ANC.

By charging Malema now, a week before the nominations process in the ANC begins, which he was bound to try and influence, it feeds into perceptions that state institutions have been instructed to gun for him and compromise his ability to continue his campaign against Zuma. The Hawks and NPA will now always have to fend off that allegation as they pursue the case.

A further blunder by the state was the drama last week when police prevented Malema from addressing mineworkers at the Wonderkop stadium in Marikana and escorted him all the way back to Johannesburg. The state, through the police, demonstrated that they were rattled by Malema's continued relationship with that community.

He was the first high-profile political leader to meet with the mineworkers after the Aug. 16 massacre, and embarrassed several Cabinet ministers at the memorial service the following week when he put the blame for the deaths squarely on Zuma and his government. Malema's forced removal was an obvious violation of his constitutional rights to free assembly and free speech, and the government and police have yet to provide an explanation as to why they took such action.

The reaction of Defence Minister Nosiviwe Mapisa-Nqakula and other security ministers to a meeting Malema had with a small group of suspended soldiers earlier this month, when they placed all military bases around the country on high alert, also shows a level of irrationality and compromised judgement when dealing with Malema.

Although the draft indictment against Malema and his co-accused shows a web of corrupt dealings defrauding the state of millions, this will be immaterial to Malema's supporters who plan to mount a similar public support campaign to that of Zuma's. They will use the timing of the charges as well as the events building up to the decision to allege that the case against Malema has political motives.

These issues will also be used to explain why ANC and ANC Youth League structures will come out in support of Malema. As an expelled leader of the ANC Youth League, party structures are not allowed to formally associate with him. But already the ANC in Limpopo has publicly called the charges into question and has declared that its leaders would be at court to support Malema.

"The (provincial executive committee) unanimously agreed that these state actions against the young man are not backed by a genuine case to fight against corruption and fraud, as has been broadly alleged," ANC Limpopo spokesman Makondelele Mathivha said in a statement.

"[It is backed] by a repressive political intent to erode hard-won rights of citizens to gather, express themselves, associate with other persons or groupings, affiliate to organisations of their own choosing; generally, the right to freedom of association, speech and so on."

The ANC in Limpopo is also using the line that Zuma's supporters used during his trials - that they would have defended any other person subjected to state persecution in the same way, and that it is the ANC's role to fight injustice of any form.

"The PEC is adamant that even if the individual involved was not comrade Julius Malema, members of the PEC would still have gone to court to observe the unfolding proceedings for themselves," Mathivha said.

It is believed that ANC Youth League leaders will use a similar explanation to justify their support for Malema during his case. Even if anti-Zuma slogans are chanted and vitriol against the state pours out on the streets of Polokwane, the ANC headquarters will be in a dilemma as to how to respond to this as they can easily inflame the situation by threatening disciplinary action against ANC members seen to be supporting Malema. In any event, the Friends of the Youth League are not bound by ANC rules and will lace the Malema support campaign with venom.

Zuma's court cases pushed both the ANC and the state to boiling point and caused unprecedented tension in the country. If the state and the ANC mishandle Malema's case, there is potential for mayhem.

Although there are many similarities between Zuma and Malema's cases, the big difference was that Zuma was still a member of the ANC during that period. Although he wanted his alleged conspirators to be exposed, it was never his intention to seek revenge or hurt the ANC.

Julius Malema may not have those considerations and the implications of this could be devastating for all concerned.

This column appeared in The Daily Maverick.