In creating the probe’s terms of reference Zuma aims to save himself and the party, say insiders

President Jacob Zuma told the ANC’s national executive committee (NEC) last weekend that he had decided to appoint a commission of inquiry into the controversial multibillion-rand arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him, the Mail & Guardian has reliably learned.

The court is expected to rule on November 17 on activist Terry Crawford Browne’s application to force Zuma to reopen the arms deal investigation.

Depending on the government’s terms of reference, the inquiry into alleged irregularities in strategic arms-procurement packages could implicate senior ANC and government leaders, including Zuma himself and possibly former president Thabo Mbeki.•

Given that the ANC is alleged to have benefited from the proceeds of the arms deal, senior party leaders, including former treasurer Menzi Msimang and Deputy President Kgalema Motlanthe, who served as the party’s secretary general at the time, could be hauled before the commission to give evidence.

Zuma, according to three NEC members who spoke to the M&G on condition of anonymity, told the NEC he was aware that the majority of the court’s judges would rule in favour of Crawford Browne.

According to the NEC members, Zuma said he took the decision to appoint the commission of inquiry because he didn’t want a situation where the courts would be seen to be running the affairs of the government on his behalf.

“He spent a lot of time complaining about the attitude of the Constitutional Court judges to justify his decision. He said the ANC and his government were under attack from some reactionaries who go to court on every thing. He told us that even in the arms deal case we had no way out. He said there was no way we could win it. This [the decision to appoint the commission of inquiry] was not his first choice. He said if there was any other choice, he would not have taken the route of appointing a commission of inquiry.”

Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference in Mangaung in the Free State next year.

“They [Zuma and his close allies] think the decision to appoint the commission of inquiry will save him. They are going to fall with it. It would have been better if this [the appointment of a commission] was done by someone else. We avoided a situation where he was supposed to go to court because there was no way he was going to come out alive. He would have been in prison by now,” said the ANC leader.

But another NEC member told the M&G that Zuma took the decision to show that he, not the judiciary, was in control. The member said Zuma did not say this explicitly but “that’s what he meant”.

“He [Zuma] said he had a responsibility to provide leadership to the state. He said that because this matter had been in the public domain for such a long time it was important that it be buried for good. His view is that the only body that is suitable to deal with this issue is government,” said the NEC member.

Some in the NEC believe Zuma called for a commission of inquiry to save the ANC, not necessarily to get to the bottom of the alleged corruption that marred the multibillion-rand transaction. Calling for a commission of inquiry was an attempt to stay ahead of the court, said an NEC member, who pointed out that if the matter was left to the court the type of commission and its terms of reference would be stricter and more binding on many party leaders and the party itself.

“If the Constitutional Court was to make the decision to have a commission of inquiry it would have been messy and would possibly have changed the political landscape of the country.”

Many ANC leaders would be expected to testify if the court created the inquiry. “They might even end up in jail. It would affect the organisation because it might be found that it was a beneficiary of arms-deal bribes. It would kill the confidence of ordinary people in the party.”

Several M&G sources said Zuma reiterated his call for a review of the powers of the judiciary, which could not be superior to the powers resulting from the mandate given by popular democratic elections.

Although Zuma explained his decision to appoint a commission of inquiry into the arms deal, it is understood the matter was not opened for discussion as he left the meeting early for his trip to New York to attend the United Nations General Assembly.

ANC spokesperson Brian Sokutu said he was not in a position to confirm what Zuma had said during the NEC meeting.

“Historically and traditionally, whenever there is a commission of inquiry the president would come up with the terms of reference. He will not interfere in the workings of such an inquiry. The commission will be independent.”

Justice Minister Jeff Radebe’s spokesperson, Tlali Tlali, said the government would announce the terms of reference only once Zuma and Radebe were back in the country.

It's a great pity that the president didn't have to furnish substantive answering affidavits to the factual founding affidavits in the TC-B vs The President matter in the Constitutional Court.

But instead of the truth rushing out of the bush, at least in the meantime a troop of chacmas came rushing out.