Jury's still out on Zuma's move

Former president Jacob Zuma has begun his testimony at the commission of inquiry into state capture.
Former president Jacob Zuma has begun his testimony at the commission of inquiry into state capture.

Former president Jacob Zuma threatened on Friday to walk away from a judicial commission of inquiry into corruption, throwing the process into temporary confusion and uncertainty.

An agreement was later cobbled together that will maintain Zuma's participation in the process. But it may be a shortlived truce as he is likely to continue to use the threat of a walkout as leverage over how his evidence and its truthfulness are tested.

For those that have attentively followed his legal and political strategy over the past two decades - referred to in some quarters as his "Stalingrad" strategy - this will have come as no great surprise.

Over the past months, the commission, headed by deputy chief justice Raymond Zondo, has heard chapter and verse about the systematic abuse of public and private power that wreaked havoc with numerous key state institutions.

These included the National Prosecuting Authority, the SA Revenue Service and several other state-owned entities vital for development and public service delivery, like power utility Eskom.

According to numerous witnesses Zuma was the central protagonist. Several large files of witness statements were presented to his legal team in the run-up to Zuma's extraordinary appearance before the commission this week.

They contain myriad accusations against him.

The responsibility of a commission of inquiry is to uncover the truth. Hence it has a duty - as Zondo made clear to Zuma as he began his testimony - to make findings on all material matters. This is the case even though the commission is not a court of law and cannot hold any individual civilly or criminally liable.

Herein lies the dilemma and the risk for Zuma.

He will have been advised that in the absence of counter-evidence, preferably from himself, the grave danger is that the commission will prefer the evidence of others and so make adverse findings against him.

That is probably why he was advised to appear before the commission. And why, having walked out, he returned.

But the strategic and tactical dilemma for Zuma and his legal team is this: by putting him on the witness stand, there is a risk that he would be found wanting, especially in terms of the details of any matter.

Hence, Zuma's lawyers were very anxious to protect him from any scrutiny and, therefore, from any detailed questioning of his version of events. This is the quarrel between the legal teams.

Laymen watching events unfold this week may well have been puzzled by this dispute. They could be forgiven for thinking that given that the whole point of a commission of inquiry is to find the truth this would, by definition, entail asking questions, difficult ones if needed.

But in an inquisitorial proceeding, such as the Zondo commission, the distinction is rather less clear and far more subtle. This is because there are no competing parties.

Instead, what you have is a commission armed with a legal team whose job it is to assist it in making findings of fact by adducing relevant evidence.

Often in this context, when a witness is being forthcoming, the need to test the plausibility of evidence may be reduced.

But when a key witness, such as Zuma, comes to the stand and time and again, as he did this week, says he cannot remember the detail - or otherwise deflects or obfuscates - then the need to probe deeper and ask more difficult questions is likely to be greater.

Zuma and his legal team may think they have played a smart hand. Having volunteered to give evidence, having presented an alternative narrative that deflects from the core subject of state capture, and having avoided detailed questioning on the sort of detail that may have tripped their client up, they then walked away only to return within a few hours.

Had Zuma not returned, the risk would have been that in the absence of detailed evidence from him to set alongside that of the witnesses who gave evidence against him, Zondo may have no choice but to make damaging findings that are severely adverse to a former head of state whose legal and political options appear to be narrowing by the day.

- Calland is associate professor in public law at the University of Cape Town - theconversation.com

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