(My thanks to IntLawGrrls for the opportunity to contribute this guest-post)
Many people in South Africa cheered the announcement earlier this week by Mokotedi Mpshe (top right), acting Director of South Africa's National Prosecuting Authority, that the Authority had dismissed longstanding corruption charges against Jacob Zuma, the head of the African National Congress and the likely President of South Africa after elections on April 22. Amongst those cheering the announcement were ordinary South Africans, supporters of the ANC, trade union members, and members of South Africa's Communist Party. Perhaps even former President Thabo Mbeki cheered the part of Mpshe's announcement declaring the absence of evidence linking Mbeki to wrongdoing in the Authority's prosecution of Zuma (below right).
The cheering was not universal. The announcement was loudly protested by opposition parties such as the recently established Congress of the People, the Democratic Party, and their supporters, and many ordinary South Africans. They are left wondering what it all means for South Africa’s fledgling and fragile legal system.
Americans reading the news of Mpshe's action may initially think it is merely a parallel to the recent action of U.S. Attorney General Eric Holder dismissing charges against former U.S. Senator Ted Stevens. In both situations, the chief federal prosecutor in the nation dismissed
corruption charges against a high-ranking political official, and in both instances the court having jurisdiction over the case raised questions of prosecutorial abuse. In the Stevens case, the federal court even held prosecutors in contempt for withholding evidence, while in the Zuma case the court had gone so far as to dismiss the charges on the ground, subsequently overturned, that the then-President of South Africa had influenced the prosecution.
Notwithstanding the similarities, important differences exist between the two cases:
► First, Holder, a Democrat, was not a member of the same political party as Stevens, a Republican, and thus could not be suspected of acting out of party loyalty. This can't be said of Mpshe, who is a member of the ANC and a strong supporter of Zuma.
► Second, the justification cited by Holder for dismissing the prosecution -- namely, the withholding of potentially exculpatory evidence -- was a factor relevant to whether abuse of process had occurred and whether prosecution should continue. For reasons which will be apparent later, Mpshe's justification for discontinuance left the question of relevancy hanging.
It is important, however. to recognize that it would not be possible to assess the relevancy issue had Mpshe not made available for public review the contents of the surreptitiously recorded telephone conversations upon which he based dismissal of the charge. This was an important step, and Mpshe performed a great service for the nation in taking it. The secretly taped conversations were between the former head of the National Prosecuting Authority and the chief of Scorpions, the nation's chief police force. Mpshe promised an investigation of the secret recordings of these conversations. But having verified their authenticity, he took full account of them, had them declassified, and released them for public review. He should be commended for this, and for the terms of the announcement respecting the dismissal of the Zuma charges. They include, as previously stated, clearing Mbeki of any wrongdoing, disclosing the existence of disagreement amongst his staff about the dismissal, and informing the public of the criterion he applied in determining if the charges should be dismissed. That criterion, he said, was whether prosecutors had abused the legal process.
These actions of Mpshe are good for South Africa because transparency in governmental affairs is critical for the functioning of the country's democracy.
Where Mpshe's actions fell short was in the application of his criterion for determining whether to dismiss the charges. The failure was two-fold:
► First, the tapes appear principally to show only that political considerations were interjected into the timing of the prosecution against Zuma, yet to show nothing in connection with the prosecution itself.
► Second, Mpshe didn't specify which parts of the taped conversations he regarded as evidence of an abuse of process sufficient to warrant dismissal of the charges.
From this, the only conclusion to be drawn is that for Mpshe, the mixing of political considerations with the timing of the commencement of the lawsuit constituted by itself sufficient infection of the judicial process to warrant dismissal of corruption charges against Zuma. Since there was no allegation the timing of the lawsuit had anything to do with the course, or outcome, of the trial, this is a rather surprising conclusion, and one providing little guidance to other prosecutors.
The next step is for a South African court to decide whether to accept the dismissal. However, the court may simply defer to the discretion of the prosecutor, leaving unsettled the issue of how the criterion of abuse of process should be applied in such dismissals.
What I think we can all cheer at this point is the enormous importance of the transparency Mpshe has brought to this issue, a transparency which also allows for accountability of Mpshe's action. On the other hand, Mpshe has set a precedent which may afford too much leeway for injecting politics into decisions of prosecutors on whether to dismiss criminal charges.
In some ways this decision stands as a gauge of the state of fifteen years of South African constitutional democracy; that is, there is much to commend it, but some misgiving persist.