Johannesburg, November 2005 to May 2006
THEN THE WRATH BEGAN to turn on me. In the conspiratorial mood of the country, there had to be a culprit to exculpate the accused. Zuma had long shown he was adroit at the blame game and at playing the victim. The ANC closed ranks if it was under siege, understandably during the struggle against apartheid, but unforgivably to protect leaders under fire in the new democratic era, regardless of what they had done.
The story going the rounds was that I had sprung a ‘honey trap’ on the unfortunate Zuma, knowing his notorious incapacity to control his libido. The idea was laughable. If I was a devious mastermind, I certainly would not have banked on Zuma being enticed into bed by an HIV-positive lesbian, and the child of a much respected struggle colleague at that. I would have thought he would have had some respect for his former comrade, particularly in view of his tendency to play on his Zulu culture.
The narrative circulated by the rumour mill went this way: since I had received a phone call from Fezeka before she charged Zuma, I must have directed her to do so. The very fact that I knew her, that she called me Uncle, that her friend Kimmy worked for me, all combined to prove my complicity. The fact that I was Mbeki’s minister pointed to him as the source of all Zuma’s misfortunes. The story certainly took hold for some time. Even the media and opposition parties bought into it, to some extent. In my view those who had were befuddled by the belief that Mbeki, the black intellectual, the remote leader, to them a Machiavellian figure, must somehow be implicated in a conspiracy against Zuma. This was the prism through which some looked at the whole issue. Certain commentators thought that being even-handed, six of one and half a dozen of the other, made them objective. But it only turned them into suckers for Zuma’s conspiracy theory. Mbeki’s hand had to be involved and he had to bear responsibility as well.
Much has been written about Zuma’s rape trial, which commenced in the Johannesburg High Court in March 2006. Judge Willem van der Merwe, a middle-aged, conservative white male presided. By all accounts he was very much steeped in the prevailing male-orientated ethos. Zuma had the luck of the draw.
There is nothing new I can shed on that hugely reported trial, but I want to highlight some absurdities both inside and outside the court, where the unfortunate Fezeka, referred to at that time as ‘Khwezi’ for the sake of anonymity, was metaphorically hanged, drawn and quartered.
What was commonly accepted by both sides was that the 61-year-old accused was a family friend of the 31-year-old complainant. She visited him at his residence in Forest Town, Johannesburg, on 2 November 2005 and after dinner stayed the night. Later that evening a sexual encounter occurred.
The crux of the state’s case was that Zuma had a sexual act with Fezeka against her will, after inviting her to stay the night. The defence’s case was that sexual intercourse between the two had taken place, though it was consensual, after Fezeka had behaved in a sexually provocative manner. At no stage had Zuma believed the sexual encounter was against her will. Zuma’s daughter Duduzile (child of his late wife Kate) was in the house and a policeman was outside on duty. Neither was made aware of any protest by Fezeka, who had a mobile phone and who could have left at any time. Zuma’s lawyers were controversially permitted to lead evidence that she had a record of making similar allegations of rape against a number of males over the years.1
The mob that gathered outside the court as proceedings commenced has cast abiding shame on Zuma and on the ANC and its allies. Their antics were akin to a medieval witch-hunting frenzy. ‘Burn the bitch!’ the mob screeched while burning photographs of Fezeka. Her real name and address, not known at that time outside ANC circles, was distributed in a sinister act of intimidation. Who can ever forget Zuma egging on his supporters, with his bellicose rendition of the MK song ‘Bring me my machine gun’ at the end of every day’s proceedings. In all the years of exile, in all my years in the military camps, I had never before witnessed him singing that song. That stirring warrior song, which had inspired so many in the struggle against apartheid, was debased by Zuma for all time. The conductor-in-chief of the lynch mob was the ANC Youth League leader, Fikile Mbalula. In 2009 he was rewarded by President Zuma with the post of deputy minister of police, later minister of sport, and then of police. Co-leader of the bloodhounds was none other than the YCL chief, Buti Manamela. He did his best to ingratiate himself with the abuser. If Zuma did not rape young Fezeka, he certainly abused her, first at his home and, ruthlessly, again and again in court and in the public arena. Manamela was duly rewarded with a post as deputy minister in the Presidency itself.
There was nobody more frenetic than a woman from Zuma’s home province dressed in traditional regalia who gyrated obscenely, impersonating Fezeka’s ‘enjoyment’ of the sex act to the delight of the throng who encouraged her as though at a Roman orgy. At the first opportunity the ANC made her a member of parliament in recognition of her antics. Not to be outdone, the ANC Youth League called on people to attack those who supported Fezeka. Senior ANC, Cosatu and SACP leaders were invariably in attendance, with nary a sober word of rebuke against this disgraceful spectacle of gender intimidation and misogyny. They brought the whole country into disrepute. I could not believe these were leaders I had once found impressive.
Certain aspects of Zuma’s evidence, and the way in which his defence was conducted, have stuck in the public domain, by no means to his credit. Even more than Italy’s one-time premier, Silvio Berlusconi, with his corrupt practices and ‘bunga bunga’2 escapades, Zuma must be the most ridiculed head of state of modern times.
What was unusual was Zuma’s decision to give his evidence in Zulu, although he was fluent in English, the language of the court. The choice reinforced his portrayal of himself as the embodiment of the traditional Zulu male – a simple man from Nkandla – who, as the New York Times correspondent observed, claimed ‘all the privileges that patriarchal Zulu tradition bestows on men’.3
In explaining Fezeka’s alleged provocative behaviour, Zuma recounted how she had visited him wearing a skirt: an ordinary knee-length skirt, not a miniskirt. ‘She used to come to my place dressed in pants but on this occasion she came dressed in a skirt. And the way she was sitting in the lounge was not the usual way I know her to be sitting … [She] had not kept her legs crossed together but they were open.’ It appears the courageous freedom fighter was subverted by the mere sight of a woman’s thighs. Later that evening, before going to bed, Fezeka had ‘changed into a kanga’,4 which Zuma said ‘was a sexually provocative outfit’, although it is worn daily by millions of African women throughout the continent.
Then there was the choice of baby oil with which he gave the young woman a massage. Claiming this had sexually aroused her, he explained, under cross-examination, why he had proceeded with penetrative sex when he did not have a condom: ‘In the Zulu culture you do not just leave a woman in that situation because she may even have you arrested and say you are a rapist.’
He agreed that the government-sponsored Moral Regeneration Movement, which he chaired, ‘was about bringing back the morals, the values, the traditions’ of society with an emphasis on HIV/Aids and condom use, and that he ‘many times said that leaders must take responsibility in that regard’. He would later apologise to the nation for aspects of his behaviour that were so remiss in respect of the responsibilities he shouldered. But he never apologised to Fezeka or to Beauty Kuzwayo, his one-time close friend.
The most talked-about evidence was the reason Zuma gave for taking a hot shower immediately after his sexual bout with the young woman. ‘Because it is one of the reasons that would minimise the risk of contracting the [AIDS] disease,’ he explained to the court. The whole country was agog.
Fezeka said in court that she ‘had frozen’ when the rape began, and for its duration, and therefore did not cry out for help. This explanation was dismissed by the judge. He accepted Zuma’s argument of consensual sex, stressing that she had cooperated and did not cry out for help. He rejected the opinion of a clinical psychologist who said that Fezeka’s lack of resistance to Zuma was probably due to the disproportionate power relationship between the two.
The judge took little account of expert opinion that could have helped him understand Fezeka’s version, or ensured that he recognised the challenge that victims invariably face in rape trials of making themselves heard. He largely ignored, or did not appear to understand, evidence that helped clarify the extremely complex and multi-layered interactions that might lock a young victim into silence. As the Congolese historian and activist Jacques Depelchin explains: ‘The silence of the rape victim does not mean that rape did not take place … The silences or repressed silences are the result of power relations.’5
Judge Van der Merwe did not address at all the many contesting impulses evident in Fezeka’s evidence. He flatly dismissed her contention that Zuma was her ‘malume’ and that she deferred to him – arguably the key to why she ‘froze’ and why she had difficulty making a scene in his house.
In his evidence Zuma had discounted a familial relationship with Fezeka on the grounds that all children used such terminology as ‘malume’ in Zulu and African custom, and that he consequently was not inhibited or duty-bound to observe the relationship of a real uncle in his interaction with her.
Beauty Kuzwayo gave evidence in support of her daughter, but Judge Van der Merwe dismissed it as ‘incoherent’. Beauty was not only elderly, and under enormous pressure from the ANC, the organisation for which her husband had given his life, but she was a nervous woman, easily flustered, who would have been feeling extremely uncomfortable in Jacob Zuma’s presence in court and with the baying mob outside. Perhaps the most surprising evidence allowed by the court was the sensitive revelations from Fezeka’s private papers which the defence produced. The manner by which the document, a draft memoir in her hand, had been acquired was sinister and took the young woman by surprise. In it she wrote about her sexual experiences and abuse suffered as a child, which she referred to as rape. It was common knowledge within the ANC’s exile community that there had been instances where she had been sexually abused by young males, and probably raped, after her father’s death. This had led at the time to an ANC investigation which was not successfully concluded. Many observers believe that the court should not have accepted her sexual history as admissible evidence. This was compounded by the court allowing the defence to parade witnesses who claimed to have had consensual sex with her, after which, they alleged, she said they had raped her.
Former Constitutional Court judge Zak Yacoob has commented on the way that Fezeka Kuzwayo was treated during the trial.6 He was making a point at a workshop about the way that the sexual histories of women victims are used as mitigating factors in rape cases. Yacoob said the sexual histories of rape accusers such as Fezeka were ‘irrelevant’ in his view, and so he would not have factored them into his judgment if he were hearing the case. He did not comment about the strength of the evidence against Zuma but about the treatment of the young woman by the court.
Yacoob said that in court cases there were always two narratives. Fezeka’s was rejected because she was painted as someone who had previously demanded sex and who did not report the rape quickly enough. He said he would have disregarded this objection if he was hearing the case. ‘On the basis of how the witness was treated, I may have found differently. But I would not have criticised the witness for not having reported the incident early. I would not have taken into account that she had demanded sex from people before, because as far as I was concerned that is irrelevant; even a prostitute has the right to say “no”.’
Concluding his remarks, Yacoob observed: ‘Judgments are not black and white. They are nuanced and very complicated. And it is quite impossible to say that a judge was right or wrong, although it is possible to say that judges may have differences of opinion.’
In the evidence he gave to the court, Zuma told the tale of a conspiratorial web that had been woven around him. When he referred to people out to destroy his career, the judge asked who they were. I was watching on television as Zuma answered without a pause: ‘Bulelani Ngcuka and Ronnie Kasrils.’
I recalled the number of times in meetings of the ANC’s NEC when I had challenged him to substantiate his vague claims that there was a conspiracy against him. Sitting next to the ever polite and far too diplomatically silent Mbeki, he would decline and say the time was not ripe. Every time he behaved in that enigmatic way, throwing out unsubstantiated allegations, I could not but think of the fate of Thami Zulu – the not 100 per cent Zulu. I noted that the respected Judge Willem van der Merwe failed to ask him if he could substantiate the allegation he made against me and Bulelani. It went unchallenged. How I wished I had been called to appear for Fezeka as a witness.
Judge Van der Merwe accordingly found Zuma not guilty of raping Fezekile Kuzwayo. He concluded, however, that Rudyard Kipling might well have added to his well-known poem ‘If’ the following line appropriate to Zuma: ‘If you can control your body and your sexual urges, then you are a man, my son.’
Zuma was a greatly relieved man but, having played the culture card so manifestly, what a humiliating slap that quasi-Kipling line from a white Afrikaner judge should have been. But if you have no sense of shame, then such a remark must be inconsequential.
Jacob Zuma certainly did not follow the judge’s advice. Following the rape trial, the ANC leadership compelled Zuma to pledge that he would no longer engage in extramarital sex, which he soon flouted. It is obvious that for them and their truant leader pledges are meaningless.
Zuma had been found not guilty of rape. As far as the ANC was concerned, he was therefore eligible to become its leader and the country’s future president. That certainly meant Gwede Mantashe’s vulgar argument against ‘morality’ was now the accepted norm. But it was a norm that refused to acknowledge that Zuma’s behaviour, during the sexual encounter, afterwards and throughout his trial, was abusive and exploitative. It should have been inappropriate for any citizen, but inconceivable, I would have assumed, for a man aspiring to become president of a once proud movement and country.
Even before the trial Zwelinzima Vavi, the charismatic Cosatu leader, had expressed support for a future Zuma presidency. He declared in 2005 that the pressure building up for a Zuma presidency, which would sweep Mbeki away, was an ‘unstoppable tsunami’. For Vavi the manner in which the Shaik trial had been run was a ‘systematic campaign’ to assassinate Zuma’s character. In time he would confess to having been profoundly misled. He forgot that a tsunami sweeps away all before it. Another fervent Zuma supporter of the time, the beguiling ANC youth leader Julius Malema, followed in Vavi’s footsteps. Having drummed up support for Zuma’s defence, he remarked then: ‘No one who gets raped stays for breakfast.’ He was young and unpolished, and had been wooed by Zuma, who effusively declared that he had the makings of a future president. But he was to grow into manhood and become the bane of Zuma’s life. To his credit Julius Malema later expressed a profound apology to Fezeka as he did to others he had insulted, such as Thabo Mbeki and Helen Zille, the DA leader.
A courageous criticism of Zuma came from an ANC stalwart, Joyce Sikhakhane-Rankin. She knew the Kuzwayo family from their time in Zimbabwe. Fezeka had stayed with her for a while after her father’s death, and Joyce was acquainted with her psychological condition and the sexual abuse she had suffered after losing the protection of her deceased father.
Phoning in to a radio talk show, she said that if the young woman had indeed wanted sex with Zuma, as the judge had found, then Zuma should have rejected any notion of sharing his bed with her, and called a taxi to take her home.
In the court of public opinion there were no doubts. Zuma had escaped a guilty verdict on the charge of rape, but the callous manner in which he had taken advantage of the young woman was undoubtedly abusive and a stain on his character. Zapiro captured the outrage best in a cartoon which will certainly characterise for all time the Zuma legacy: the showerhead protruding from his elongated skull.