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ANC sends letter of complaint against NPA to Public Protector

African National Congress (ANC) Treasurer General Mathews Phosa today (20 November 2008) sent a letter of complaint against the National Prosecuting Authority (NPA) to the Public Protector.

Expressing concern at the manner in which the NPA has conducted itself in dealing with ANC President Jacob Zuma, the letter sent on behalf of the organisation, has strongly blamed acting NPA national director Mokotedi Johannes Mpshe for unlawful conduct.

The full text of the letter reads:

“We are submitting this Complaint on behalf of the African National Congress (ANC) and its President Jacob G. Zuma. We are aggrieved by the unconstitutional, unprofessional and unlawful conduct of the Director of the National Prosecuting Authority, Mokotedi Johannes Mpshe (the National Director of Public Prosecutions) which is detailed in this letter.

“It is our understanding that your office is charged with investigating amongst other things, government maladministration, improper conduct by a person performing a public function and acts of omissions by a person performing a public function remitting in improper prejudice to another person. Accordingly we request that you investigate the NPA and Mpse in connection with the following issues on an urgent basis.”

The NPA was “currently pursuing an appeal of an adverse ruling by Judge Nicholson who dismissed the NPA`s case against President Zuma”. Adds the letter: “In an interview with City Press, 16 November 2008, Mpshe admitted as follows: `.this trial ( Jacob Zuma`s corruption trial) was a political trial and was difficult for the NPA to handle`.”

In that interview Mpshe was asked a question as follows: “You can`t ignore the political implications you`re your decision to recharge Zuma will have. Nicholson has already said so in his judgment. How are you going to deal with it?” He stated in response that: “If you ask me that question 14 years from now I`ll still say Nicholson was wrong. Completely wrong. I don`t foresee a stage where I am going to change my position on this one. He`s wrong and that`s what I told him. Having said that, the NPA can`t operate as an island and ignore what is happening around us.” Mpshe also deliberately made statements to the effect that President Zuma remains “an accused” even though the court dismissed the criminal charges against him. The ANC complains that Mpshe`s action and statements violated President Zuma `s rights as follows:

A. Violation of President Zuma`s Constitutional Right to Equality.

Section 9 of the Constitution provides that “everyone is equal before the law and has the right to equal protection and benefit of the law.” This means that Zuma, regardless of his standing in the community, should be treated no better and no worse than similarly situated accused persons. President Zuma, like every citizen has a constitutional right to a prosecution that is totally independent of political influence and which prosecutes fairly, consistently and without fear or favour to anyone. It is a matter of record that Zuma has never asked for any special favours from anyone. President Zuma has always insisted on his right to equal treatment, has subjected himself to the authority of our courts at all levels and has always abided by the rulings of the courts. It is downright unfair to state that President Zuma remains an “accused” even though a Court has dismissed the criminal charges against him.

Mpshe makes startling admission that he regards President Zuma`s case as a “political trial” and that he is allowing his judgment on the Zuma matter to be swayed by extraneous political considerations. Mpshe goes further to state that he would forever insist that Judge Nicholson was wrong even “14 years from now” which means he would insist on holding that position regardless of the outcome of the appeal the NPA is currently pursuing. The appeal which is scheduled to be heard within the next few days would certainly not take 14 yeas to resolve. Therefore Mpshe`s statements can only be understood to mean that he is prepared to disregard any court rulings now and in the future as long as they are favourable to President Zuma.

In the context of the case involving President Zuma, it is very clear that Mpshe`s comments are aimed at influencing and affecting the outcome of the forthcoming general elections in our country. Nothing can undermine the rule of law more than a prosecutor`s admission that its decisions to prosecute would be arrived at or based on political considerations, or influence, and that Judge Nicholson`s ruling will be disregarded as wrong “even 14 years from now.”

We contend that Mpshe`s latest statements reflect a pattern of prosecutorial misconduct in which inflammatory press releases, media interviews and false and misleading statements are often used to prejudice the rights of President Zuma. We therefore request that the Public Protector investigate and make findings that NPA`s discriminatory selection of President Zuma for prosecution, repeated violation of his fair trial rights as evidenced by two aborted prosecution attempts, and public condemnation of President Zuma have been unlawful, invidious or in bad faith.

B. Violation of President Zuma`s Rights Under Sections 10, 12, and 14 of the Constitution

Section 10 of the constitution states that “everyone has inherent dignity and the right to have their dignity respected and protected.” As this Public Protector`s Office has previously found the NPA has engaged in a pattern of violating President Zuma`s right to dignity. The ANC respectfully reminds this Office that during a press conference on August 23, 2003, Ngcuka, then NPA director issued a statement announcing that whilst “a prima facie case of corruption” existed against President Zuma, the prosecuting authority was not convinced that it had sufficient evidence against him to secure a conviction. It was accordingly announced that a decision had been taken not to prosecute Mr. Zuma.

At the time Mr. Zuma was the deputy president of the Republic of South Africa and according to him a perception was created that he was guilty but that either he had covered his tracks too well or that he was too politically powerful to be prosecuted. The NPA decided for its own tactical reasons not to indict Zuma with Shaik in 2003 but Shaik`s trial was effectively a trial of Zuma by proxy in the court of public opinion and during Shaik`s trial. President Zuma was thus officially and publicly accused by a prosecutor of criminal wrongdoing amidst claims by the same prosecutor that he did not have a winnable case.

As this Office may recall, President Zuma lodged a complaint with the public protector on 30 October 2003. The Public Protector dutifully investigated the matter and subsequently issued a report in which it found that Ngcuka`s statements infringed on President Zuma`s constitutional right to dignity and caused him to be improperly prejudiced. It is also noteworthy that during its investigations, the public protector experienced stone-wall tactics by the NPA and other difficulties ranging from prevarications, evasiveness and outright refusal to cooperate with the public protector. The ANC respectfully submits that the said action by the NPA also violated President Zuma`s right to the presumption of innocence.

That principle is violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. In this regard the Court emphasizes the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. See, Allenet De Ribemont v. France, ECtHR judgment of 23 January 2005, para 35 and Daktaras v. Lithuania, ECtHR judgment of 10 October 2000, para 41. Mpshe`s invitation to the public to regard President Zuma as “the accused” despite the fact that there are no criminal charges pending against President Zuma at this time should be seen as a perpetuation of the egregious violations of President Zuma`s rights previously found by this Office. The culture of impunity has been taken a step further because the NPA director was never censored or disciplined by anyone for his unconstitutional actions which were found proven by the Public Protector.

Clear evidence will establish that the NPA has used the court`s process improperly used for official public smear of President Zuma while at the same time repeatedly frustrating his right of access to court and denying him a forum in which to vindicate his rights. The NPA and Mpshe have subjected President Zuma to the torture of public condemnation and loss of reputation. The Honourable Justice Msimang recognized the severe prejudice and violation of the right to dignity already suffered by President Zuma. In his judgement striking the first prosecution case against Zuma off the roll he stated as follows: “We cannot imagine any case in recent times which has triggered as much negative publicity in the media as the present one.However, as it was pointed out in the Sanderson case, the problem with this kind of prejudice is that it closely resembles the kind of punishment that ought only to be imposed on convicted persons and is therefore inimical to the right to be presumed to be innocent enshrined in the Constitution. Much as such prejudice is inevitable in our criminal justice system, the accused`s right to a trial within a reasonable time demands that the tension between the presumption of innocence and the publicity of trial be mitigated.” State v. Zuma (Msimang Judgment).

Section 10 should be read together with Sections 12 and 14 of the constitution. Section 12 provides as follows: “Everyone has the right to freedom and security of the person, which includes the right- not to be deprived of freedom arbitrarily or without just cause; not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.” Section 14 states that “Everyone has the right to privacy.” Respect for a person`s reputation, like respect for dignity of the person, is a value that underlies the Constitution. Security of the person is not restricted to physical integrity; rather, it encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.

In this case, there is no question that the NPA`s grandstanding, press releases, media leaks and other statements are a calculated prosecution strategy to deny Mr. Zuma a fair trial and to violate his rights under Section 12 and 14 of the Constitution. The unrelenting media coverage, prejudicial delay in prosecuting him, the stigma attached to the charges of corruption against him, court decisions which purport to find him guilty of wrongdoing even though he was never given the opportunity to defend himself in a fair public trial, outrageous media leaks orchestrated by or at least emanating from the NPA`s office have all caused severe prejudice to President Zuma. These have all obviously impacted his life and point to a violation of his rights under Sections 12 and 14 of the constitution.

Undeniably, the human dignity of a person is closely tied to a person`s reputation and privacy interests. Indeed, much of the harm which has been suffered by Mr. Zuma in this case has been the damage which has been done to his reputation. The good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the rights enumerated in the Bill of Rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society. The egregiousness of the violation in Zuma`s case was that the NPA announced the existence of so-called prima facie evidence of corruption against Zuma and then declared its intention to use Shaik`s trial to embarrass Zuma, to put him on trial by proxy in Squire`s court and in the court of public opinion. When the Shaik case was over the NPA then brought charges against President Zuma which it failed to prosecute with diligence. As if to emphasize the NPA`s abuse of the court process to persecute Zuma, the NPA engaged in such incompetent and dilatory litigation tactics which caused the Honourable Justice Msimang to condemn such tactics which he said “caused the case to limp from one disaster to another.” He threw out the case.

The NPA then took an inordinately long time to commence another prosecution of President Zuma. In the meantime it embarked on media leaks and prejudicial press releases which were geared to provoke public condemnation of President Zuma. When President Zuma prevailed in the elections for the Presidency of the ANC in Polokwane, the NPA charged president Zuma with additional charges. That case too was dismissed because of the NPA`s incompetence. The Public Protector must investigate this as a case of government maladministration, improper conduct by a person performing a public function and acts of omissions by a person performing a public function remitting in improper prejudice to another person.

C. Violation of President Zuma`s Right to A Fair Trial, Impartial Tribunal and Unbiased Prosecution.

The ANC respectfully submits that every criminal defendant in our country has a constitutional right to a prosecutor who is unbiased, neutral and/or disinterested. See, Smyth v Ushewokunze & another 1998 (2) BCLR 170 (ZS) where the court condemned a prosecutor who had “involved himself in a personal crusade” against the accused and lacked the objectivity, detachment and impartiality necessary to ensure that the State`s case was presented fairly.

The Court assessed the evidence and concluded that it revealed that the prosecutor`s behaviour had fallen far short of the customary standards of fairness and detachment demanded of a prosecutor, which required him to conduct himself with due regard to the basic rights and dignity of the accused. Most important, the court stated that the accused`s right to “a fair hearing by an independent and impartial court” embodied a constitutional value of extreme importance and had to be interpreted so as to include within its ambit not only the impartiality of the decision-making body but also the absolute impartiality of the prosecutor. `Impartial court` had to be interpreted so as to embrace a requirement that the prosecution exhibit fairness and impartiality in its treatment of a person charged with a criminal offence.

Accordingly, the prosecutor who displayed vindictive and biased attitude to the accused during investigation and remand proceedings was interdicted from taking any further part in preparation or presentation at trial of charges against accused.

There is an obligation on the NPA to avoid even the appearance of partiality or conflict of interest on the part of the prosecutor. Mpshe`s avowed disregard for the rule of law and political grandstanding are not isolated incidents. They reflect a pattern of behaviour on the part of the NPA which has already been condemned by the courts and the Khamphepe Commission. Mpshe has embarked on a deliberate course of conduct in pursuit of his media celebrity status all in flagrant disregard for the code of ethics prohibiting prosecutors from making public statements or issuing press releases that have a substantial likelihood of prejudicing a defendant`s right to a fair trial. At all times a prosecutor has a duty of remaining neutral and refraining from prejudicing a criminal proceeding. He must not attempt to mislead our people or sway public opinion, by making comments to the public or otherwise.

Such requirements are necessary because any pretrial publicity caused by a prosecutor that attacks the accused can be a severe form of punishment without due process of law. In fact, Mpshe`s media statement flies in the face of Judge Nicholson`s admonition to the NPA- the NPA`s prosecution policy, as well as the code and directives “emphasise very clearly that statements should not be made to the media before a prosecution is instituted.”

At the moment, a court of law has dismissed the NPA`s case against Zuma although the NPA is pursuing an appeal in that matter. Accordingly, Mpshe`s wilful disregard of the court rulings, code of ethics for prosecutors and his self-serving statements that President Zuma remains “an accused” deserve condemnation. Mpshe`s speculation that Zuma will be president by the time the NPA goes to court are self-serving, politically motivated, unprofessional and deserving of the most serious condemnation by all law-abiding persons.

What is even more outrageous is the fact that the Public Protector`s findings in 2004 clearly put everyone on notice that the NPA`s conduct of the prosecution was in violation of President Zuma`s rights. But the NPA`s actions continued unabated. The Hefer Commission heard testimony that Bulelani Ngcuka used a confidential meeting with black editors for the “vitriolic character assassination” of several subjects of Scorpions investigations, including then Deputy President Jacob Zuma and Shaik.

One of the witnesses, Mona, told the commission the following: Ngcuka said “he would wash his hands off Zuma and leave him in the court of public opinion”. Ngcuka allegedly said that Zuma had landed in trouble because he “surrounded himself with Indians”. Mona sent copies of his notes about the meeting with Ngcuka to the chief justice, the public protector and Justice Minister Penuell Maduna. In a similar vein, the Khampepe Commission of Inquiry also found evidence that the myriad of public complaints relating to the leaking of information by the DSO were well-founded. It held that such unlawful action “that causes prejudice or embarrassment to those who are the subject matter of the investigations.” It found evidence of abuse in the manner in which the DSO publicizes its work to the media “FBI style” meaning “that the DSO conducts its operations as though it were a law unto itself.” It found such “conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public`s confidence in the law enforcement agencies.”

A naming and shaming punishment is one in which a convicted criminal is subjected to embarrassment as part of a sentence. A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Mpshe should have been aware that press statements by prosecutors – particularly while criminal investigations and appeals are ongoing – pose several significant dangers. He knows that this is a case where intense media interests in the criminal proceedings involving allegations of corruption and bribery against a President of the ruling party would inevitably follow. He knows that a prosecutor`s extrajudicial comments can jeopardize a defendant`s rights to a fair trial by implanting suggestions of guilt in the minds of the public before the charges can be fully and fairly exposed in a court of law, thus undercutting the presumption of innocence to which all defendants are entitled.

In conclusion, we respectfully submit that the NPA and Mpshe`s statements against President Zuma are prejudicial and caused a severe violation of his constitutional rights. Parliament had the opportunity to act on the previous Public Protector`s findings in Zuma`s favour – it failed and refused to act thereby denying Zuma equal protection of the laws by our legislative branch. The ANC hereby requests that the Public Protector vigorously pursue its investigation, publish its findings and provide effective and meaningful remedies to President Zuma.

Issued by:
Carl Niehaus
African National Congress

Carl Niehaus
072 343 4007

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