State capture: The era of contempt for accountability is over

It is understandable why President Jacob Zuma’s office is procrastinating over the terms of reference for the judicial commission of inquiry on state capture.

Although there is a mountain of allegations and evidence in the public domain on the Gupta network’s pillaging of the state, the judicial commission chaired by Deputy Chief Justice Raymond Zondo will have to zero in on one of the key issues: the president’s involvement.

Whatever legal gymnastics and phraseology the presidency resorts to, Zuma’s conduct will be the subject of scrutiny and he will most likely have to appear before the commission.

Zuma, Public Protector Busisiwe Mkhwebane, and Gupta defenders had wanted the scope of the inquiry broadened to examine the corrupting role of business historically. But the judgment of the North Gauteng High Court in December narrowed the parameters to the remedial action of Thuli Madonsela’s State of Capture report.

That report requires that Zuma’s role become central to the commission’s work.

The complaints on which Madonsela based her investigation stem from the revelations by former deputy minister of finance Mcebisi Jonas and former ANC MP Vytjie Mentor that the Guptas had offered them cabinet positions.

The Dominican Order of Catholic priests, the first complainant, also asked that Madonsela probe whether the Guptas knew that Des van Rooyen was to replace Nhlanhla Nene as finance minister beforehand.

DA leader Mmusi Maimane, the second complainant, asked more directly that Zuma’s role in the offers to Jonas and Mentor be investigated, as well as his conduct in relation to the Guptas’ offers of cabinet positions and appointments to SOE boards.

Madonsela dedicated an entire section of her report to the president’s conduct, setting out whether he was in violation of the Executive Ethics Code. While she could not pronounce decisively on Zuma’s actions, she made a number of telling observations.

“It is worrying that the Gupta family was aware or may have been aware that Minister Nene was removed six weeks after Deputy Minister Jonas advised him that he had been allegedly offered a job by the Gupta family in exchange for extending favours to their family business,” the report states.

“If the Gupta family knew about the intended appointment it would appear that information was shared then in violation of section 2.3(e) of the Executive Ethics Code which prohibits members of the executive from the use of information received in confidence in the course of their duties or otherwise than in connection with the discharge of their duties.”

On whether Zuma “turned a blind eye” to alleged corrupt practices by the Gupta family and his son Duduzane, which is also in violation of the Executive Ethics Code, Madonsela states:

“There seems to be no evidence showing that Mr Jonas’s allegations that he was offered money and a ministerial post in exchange for favours were ever investigated by the Executive. Only the African National Congress and Parliament seemed to have considered this worthy of examination or scrutiny. If this observation is correct then the provisions of section 2.3 (c) of the Executive Ethics Code may have been infringed as alleged.”

Based on these and a number of other observations, Madonsela directed that a judicial commission of inquiry be established to properly investigate the allegations in the report.

There is no possible way that Zondo can avoid looking at Zuma’s role in state capture and whether he again violated his oath of office, as he did in the Nkandla upgrades.

The president has effectively danced around processes to hold him accountable up to now, including in parliament. The ANC caucus previously shielded him from appearing before ad hoc committees and he made a mockery of question and answer sessions.

However, if subpoenaed, Zuma will have to give evidence under oath before the Zondo commission and will be interrogated by the evidence leader as well as legal representatives for all parties that will ask to participate in the commission.

It was only in his 2006 rape trial that Zuma had to answer questions under oath, and although he had to reveal embarrassing personal details then, it will be nothing compared to the grilling he will receive at the commission.

The presidency is therefore being cautious about how the terms of reference are phrased as they have a direct bearing on the country’s number one citizen.

Judging by the Eskom inquiry in parliament, the Life Esidimeni arbitration, and the hearing into Social Development Minister Bathabile Dlamini’s role in the Sassa crisis, the era of contempt for accountability is over.

The days of Zuma giggling and resorting to “meandos” when he is asked questions appear to be numbered.