ZUMA, STATE PONDER NEXT STEPS AFTER COURT RULING

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SUBJECT: ZUMA, STATE PONDER NEXT STEPS AFTER COURT RULING

REF: PRETORIA 47

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1. (U) Summary: The Supreme Court of Appeal on January 12
reinstated the corruption case against African National Congress
(ANC) President Jacob Zuma, overturning an earlier verdict that
had tossed out the charges related to the controversial 1998
arms deal on a technicality. (Note: The state charged Zuma
with corruption, money laundering, racketeering, and fraud
shortly after he won the ANC presidency in December 2007. End
Note.) Pietermaritzburg High Court Judge Chris Nicholson ruled
in September 2008 that the state's case against Zuma was invalid
because the National Prosecuting Authority (NPA) did not allow
Zuma to make representation before indicting him. The decision
also noted allegations of a political conspiracy against Zuma
"could not be ruled out," and ultimately led to the forced
recall of former President Thabo Mbeki. The Supreme Court of
Appeal, in reinstating the case, offered a scathing rebuttal of
the Nicholson ruling and declared the NPA did not have a legal
obligation to give Zuma representation. Zuma and the ANC are
exploring a number of legal options that would keep him in
position to win the presidency in the election, while most
pundits and political analysts say this legal drama is far from
over. End Summary.


The Ruling: Supreme Court of Appeal Weighs In


2. (U) The Supreme Court of Appeal, in overturning Nicholson's
verdict on January 12, pointed to a number of errors in the
lower court's ruling. The Court declared Nicholson's
allegations of a political conspiracy as "erroneous,"
"unwarranted," and "incomprehensible." Supreme Court of Appeal
Judge Louis Harms said Nicholson overstepped the limits of his
duty as a judge. He said, "[Nicholson's findings] were part of
his own conspiracy theory and not one advanced by Mr. Zuma."
Harms wrote, "[Nicholson] changed the rules of the game, took
his eyes off the ball, and red-carded not only players but also
spectators." Harms also upheld the role of the NPA in
prosecutions, noting that "an Attorney General (or NDPP) is
required by convention to make prosecutorial decisions without
regard to political considerations and may not subject his
discretionary authority to that of government. He or she is also
not responsible to government to justify the exercise of his or
her discretion because this political office has judicial
attributes."

What Happens Next: Zuma's Legal Team Pushes Back


3. (U) Zuma's legal team has at least five options. First, it
can refer the Supreme Court of Appeal decision to the
Constitutional Court. Second, the team could request a stay of
prosecution, where the NPA would halt proceedings against the
ANC leader after consultation. Third, it could take its chances
and go to court. (Note: Pundits argue that Zuma says "he has
not had his day in court" while noting that he has done
everything to avoid a corruption case going through the justice
system. End Note.) Fourth, the team could seek to delay so the
ANC wins the election and Parliament amends the Constitution to
prevent the prosecution of a sitting president until he leaves
office. Fifth, it could cut a deal with the NPA.


4. (U) Each of the options would take time away from Zuma and
the ANC's efforts to win and consolidate power. Appealing to
the Constitutional Court, going to court, and delaying until
after the election would be the options that take the most time
because of the legal work involved. The legal team appears to
be pursuing all options, but so far has only made representation
to the NPA now that the charges stand. Zuma's attorney told
reporters on January 12 the team would examine whether appealing
to the Constitutional Court is possible and during the past week
the press reported rumors of Zuma's team seeking a deal with the
NPA.

What Happens Next: The State's Case Stands


5. (U) The state has made clear that its charges against Zuma
stand. The NPA, which has now been vindicated, must decide in
the short term whether to work with Zuma's legal team to have
Nicholson recused from presiding over any eventual trial of
Zuma. Over the longer term, the NPA must weigh whether to
strike a deal with Zuma's defense team or counter charges in
court or an appeal in the Constitutional Court. The NPA in many
ways is in a reactionary position even as its charges stand.
NPA spokesperson Tlali Tlali on January 12 welcomed the ruling
and indicated that the NPA is now ready to proceed with the
prosecution of Zuma. However, he acknowledged the NPA is aware
that other legal avenues are still available to Zuma.


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What Happens Next: Commentators Offer Insight


6. (U) Political analysts and legal pundits offered a variety
of views on the Supreme Court of Appeal's judgment, most sharing
the assessment the legal drama surrounding the ANC leader is far
from over. Constitutional law expert Pierre de Vos said, "The
judgment ~ deals a blow to Mr Zuma's potential legal arguments
about a permanent stay of prosecution as it makes clear 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,
something not alleged by Mr Zuma and which in any event can only
be determined once criminal proceedings have been concluded."
Center for Policy Studies political analyst Ebrahim Fakir said,
"The appeal decision means we are back at square one. We must
brace for another round of legal battle, which will probably end
in the Constitutional Court." Law expert Shadrack Gutto noted
that the easiest solution for Zuma, and for the country, would
be for his legal team to strike a deal with prosecutors.
However, he said that such a move would be politically risky.
He said, "This might be seen as conceding guilt, and he will be
required to make some serious disclosures." Gutto said this
saga is long from over and will "hang over Zuma's head."

Comment


7. (SBU) The Supreme Court of Appeal's ruling against the
Nicholson verdict was largely expected by legal experts and the
ruling party. (Note: Housing Minister Lindiwe Sisulu told
Poloff in East London on January 10 the ANC would not travel to
Bloemfontein to hear the decision because the party expected the
outcome to be unfavorable. End Note.) Zuma and the state have
a number of legal options available to them, but weighing those
options and putting a plan in place will take time and
resources. More than anything, this ruling vindicates
supporters of Thabo Mbeki who will argue that the ANC erred in
recalling him from the presidency; South Africa watchers are
awaiting his reaction. However, this judgment will not change
the ANC's decision of nominating Zuma for president, nor will it
revisit the recalling of Mbeki. The Congress of South African
Trade Unions and the South African Communist Party have declared
their continued support for Zuma and so has the ANC Youth
League. As far as Zuma supporters are concerned it is business
as usual. The SCA judgment will not stop them from ensuring
that Zuma ascends to the presidency after elections with or
without corruption charges.


8. (U) This message was drafted by Durban Pol-Econ Assistant in
collaboration with visiting Pretoria PolOff.
DERDERIAN