Dear Mr Mantashe
RE: Criminal activities on the part of President Jacob Zuma during May/June 2015
- You will recall that we corresponded with you and one of our directors spoke with you on the telephone prior to the last national general elections in a failed effort to dissuade the ANC from deploying Jacob Zuma as its presidential candidate for re-election for a second term of office.
- While we respect the right of the ANC to organise itself along the lines of a liberation movement and to deploy its members into positions of elected political power, we expressed our concerns that Mr Zuma is too compromised and too conflicted to fulfil the role of head of state and head of the national executive in our constitutional democracy under the rule of law.
- Since his re-election Mr Zuma has become ever more conflicted and compromised.
- As you will know from press reports he has in the course of the last month alone “engaged” with the NDPP, Mxolisi Nxasana in a manner which led to the latter agreeing to resign his position in return for payment of an amount reported to be R17,3 million. President Zuma has also, according to a report in the latest edition of the Mail and Guardian newspaper, arranged, with the co-operation of four of his most trusted cabinet ministers, for the president of the Republic of the Sudan, Omar Al-Bashir, in respect of whom two ICC warrants of arrest have been issued, to leave the country. This exit was exercised in breach of a court order which interdicted Al-Bashir from doing so and which also required the SA government to ensure that he did not leave pending the determination of a court hearing.
- President of the AU, Robert Mugabe, has publicly let it be known that President Zuma gave an undertaking to Al-Bashir that he would not be arrested in SA. The rule of law precludes Mr Zuma from giving any such undertaking.
- We have taken the advice of counsel in regard to these two incidents and now write to you to request that you urgently convene a meeting of the NEC of the ANC to consider the recall of President Zuma.
- You will remember that a previous president was recalled by the ANC in September 2008, so there is precedent for doing so.
- The reason for our request that the NEC resort to recalling President Zuma is that he is involved in criminal activity totally incompatible with his oath of office and his constitutional duties and obligations.
- The negotiation of the agreement with Mr M Nxasana is a clear contravention of section 9 of PRECCA and is accordingly a criminal offence.
- The spiriting away of Omar Al-Bashir in contempt of a High Court Order amounts to defeating the ends of justice, also a criminal offence.
- It is intolerable to our constitutional order that a sitting president should, in the space of a few days, make himself guilty of the corrupt activity involved in his agreement with Mr Nxasana and then defeat the ends of justice by acting in complete disregard of an order of court by which he is bound in relation to the secretive departure of Al-Bashir from the country.
- If the president is not recalled by the ANC on or before 10 July 2015 and otherwise dealt with appropriately by the ANC as a law-abiding political organisation, we will be left with no alternative but to lay criminal charges against him with the SAPS ourselves.
- We shall thereupon also call upon the Asset Forfeiture Unit to use its powers to search for and to seize the funds paid to Mr Nxasana as the proceeds of crime and to hold them until there is finality in the criminal proceedings.
- Should the NPA decline to prosecute the president we will obtain a certificate of nolle prosequi from the relevant director of public prosecutions and mount a private prosecution against the president in which he will be charged with defeating the ends of justice and with contravening the provisions of section 9 of PRECCA.
- In the event of the AFU not co-operating with our request for the seizure of the proceeds of the pay-out to Mr Nxasana, we will seek a civil interdict to freeze the proceeds pending the final determination of the private prosecution.
- In the private prosecution we will ask at sentence stage that the payment of R17,3 million be declared forfeit to the State and that the accused be declared liable for the legal costs incurred in the private prosecution. Mr Nxasana is an obvious co-accused in respect of the section 9 charge.
- It is intolerable to all democrats, both in and outside the ANC, who respect the supremacy of the Constitution and the rule of law, that impunity should prevail after the resignation of the NDPP whose independence is guaranteed in C 179 and after so flagrant a violation of C 165 by the president and those who assisted him in allowing Al-Bashir to leave the country.
- As the party of liberation and the co-author of the new multi-party constitutional dispensation under the rule of law, the ANC is, we suggest, in honour bound to consider our request favourably and to take steps to recall President Zuma as soon as possible, and in any event before 10 July 2015.
- Please acknowledge safe receipt of this communication and let us know if you require any further particularity in order to enable the NEC to deal with the request that President Zuma be recalled forthwith.
- If the ANC does not regard the President’s agreement with Mr Nxasana as criminal and does not agree that the ends of justice were defeated when Al-Bashir was allowed to leave South Africa, we would be pleased to know why. In particular we would like to know in what respects the report in the Mail and Guardian upon which we rely above is inaccurate. We record that no accountable explanation for the resignation of Mr Nxasana has ever been given.
Paul Hoffman SC
Director, Accountability Now