In his recent biography of Jacob Zuma, Jeremy Gordin cites my article from 1993, "The dilemma of Albie Sachs: ANC constitutionalism and the death of Thami Zulu" (Searchlight South Africa No 11, October 1993, available here), but fails to pursue the questions I raised. Gordin was winner last year of the Mondi Shanduka Newspaper Journalist of the Year award. His book, Zuma: A Biography, was published by Jonathan Ball Publishers, Johannesburg, on 1st December 2008.

These questions directed a searching analysis to the attitude of the African National Congress to the practice of constitutionalism and legality, and predate the establishment of the South African Constitution of 1994. They have a bearing on the historic responsibility of Jacob Zuma as former head of counter-intelligence in the Department of National Intelligence and Security of the ANC in exile (i.e., the ANC "security department", or iMbokodo, the grinding stone), as current president of the ANC, and as the likely President of the government of South Africa as from April this year.

I repeated these questions in an article posted on Politicsweb on 17 September last year, "The ANC: Between Constitutionalism and Totalitarianism" (see here). The same questions had also been raised in the national press in South Africa by Patrick Laurence, one of the most honourable and reliable journalists in the country, as in his article "Peacemaker's skeletons in the closet" in the Sunday Independent of 18 December 2005 (see here), and in other articles. (Gordin quotes very extensively, and appropriately, from Patrick Laurence in his biography, but not on this crucial issue).

These crucial questions derive from the murder in exile in Lusaka, Zambia, of a former senior commander of Umkhonto weSizwe on the eve of the unbanning of the ANC, and the progress of the ANC towards becoming the overwhelmingly dominant party of government under the new Constitution.

Gordin must be said to have evaded these questions.

I will begin by repeating what I wrote on Politicsweb last September. (The Preface and Acknowledgements to Gordin's book are dated the following month, October 2008).

'Fifteen years ago, in October 1993, I published an article "The dilemma of Albie Sachs: ANC constitutionalism and the death of Thami Zulu", in a banned exile magazine, Searchlight South Africa No 11 (October 1993). This article was an inquiry into the quality of jurisprudence in the ANC, focussed on the finding of an ANC commission of inquiry into the death in Lusaka in November 1989 of a senior commander of its military wing Umkhonto weSizwe, Thami Zulu (real name, Mzwakhe [or Muziwakhe - PT] Ngwenya). The commission had been headed by Sachs, a long-standing ANC member and supporter, and since 1994 an eminent judge in the Constitutional Court.

'The Sachs Commission's report was made public by the ANC in 1993. It concluded that Zulu, who had been released from detention by the ANC security department in Lusaka into secure custody only days before his death, had died from a number of possible causes. One of these was forensically proven poisoning; in other words, he had been murdered. However... the Sachs Commission and the report never inquired into who could have poisoned him. This was a murder mystery with no whodunnit.

'I argued that the jurisprudence of Sachs (whom I described in the article as the "liberal and juridical 'consience' of the ANC in exile") was "a crucial measure of the organisation as a whole", and that the deficiencies in the report of the Sachs commission had a "more than emblematic significance". (p.40)

'In relating to Sachs, I argued, one was "relating to the ANC at its most spell-binding". The subject of the article was "the future of the legal system in South Africa, perhaps for decades to come".

'Referring to the fraudulent Stalin Constitution of 1936 as a model for the SACP and the ANC, I stated that with Sachs, the "ANC publicist is internally at war with the jurist, and the publicist frequently wins out." I concluded that the "distinction between Sachs' role in protecting human rights inside the ANC and in concealing its abuses is difficult to make. His work is part of the problem, not its solution. ...Between the 'comrade' and the activist for human rights, an internal conflict sparkles like static electricity. ...The 'conscience of the ANC' is looking worn." (pp.48-50)

'Naturally, none of this is - or in any way is intended as - a comment on the quality and character of Mr Justice Sach's jurisprudence since taking up his post in the Constitutional Court. That is a subject completely outside the purview of this short article. I am not aware of any reason to put this in question. I do, however, put in question the character and integrity of Sachs's jurisprudence in the matter of his participation in the ANC commission of inquiry into the death of Thami Zulu, and this, as I wrote in 1993, was of "more than emblematic significance".

'Its significance was that it gave expression to the very ambiguous relation, to say the least, of the ANC towards law and constitution. The respected journalist and former director of the Helen Suzman Foundation, Patrick Laurence, has written of Sachs's jurisprudence in the matter of the Thami Zulu affair in the same spirit....

'In my article in Searchlight South Africa, I commented that what was at issue in Sachs's book, Protecting Human Rights in a New South Africa (Oxford University Press, Cape Town, 1990), is a "rosy liberal prose that obscures what it should illuminate." (p.49)

'I continued that this was part of a bad and compromised tradition in South African law.

"In a chapter on 'The future of South African law,' he [Sachs] writes of the 'legal freedom fighters in our past' - Gandhi, Schreiner, Krause, Seme, Mathews, Fischer, Nokwe, Berrange, Kahn, Muller, Mandela, Tambo, Slovo and Kies - people who saw their legal careers as being 'inextricably linked up with the pursuit of justice', (p.98 [in Sachs's book]).

"'There was a central difficulty about this kind of discourse, I argued, native to the ANC and the South African Communist Party, to which Sachs had a very close relation before and during the exile decades. Such discourse presents, I wrote, "No reference to the problematic relation of at least three of these [jurists] to the ANC's system of prison camps in exile. No reference either to the fact that a number of these jurists for decades justified the tyranny of the Soviet Union, a model for Quatro and its clones. He [Sachs] writes of the qualities of professional legal integrity, including that of 'never consciously misleading the court'. (p.99 [in Sachs's book]) But to mislead a whole population...."

'The report of the Sachs Commission into the death of Thami Zulu referred extensively to the ANC's Code of Conduct, which it adopted at its national conference at Kabwe in Zambia in 1985, its last before returning legally to South Africa. The Kabwe conference was principally a cover-up and whitewash for the ANC's suppression by torture, imprisonment and public executions of the mutiny of over 90 percent of its trained troops in Angola the previous year, which was above all a pro-democracy protest.

'I argued that the "problem of ANC constitutionalism is wrapped up, a riddle inside an enigma", in the convolutions in this Code of Conduct, and in the Sachs Commission's references to it. The post of Officer of Justice in the ANC, established under the Code of Conduct, to which the ANC lawyer Zola Skweyiya (with a doctorate in law from Stalinist East Germany) was appointed, and which was supposed to offer protection to members against abuses of authority by their own organisation, was a mere dead letter.

'As my article pointed out, "Two years after the Sachs report, the Officer of Justice, Zola Skweyiya, told the [ANC-appointed] inquiry chaired by his brother Thembile Skweyiya [after the return from exile] that his efforts to visit Angola in 1986 and 1987 had been blocked 'at every turn' by the then head of the security department, [the late Mzwandile] Piliso, and that he himself had been in danger of being arrested. He had been allowed to visit Angola late in 1988, but was denied access to Quatro. Efforts to visit [the ANC prison at Mbarara in] Uganda were also blocked. ...Severe abuses [in exile] continued unchecked, well on into 1991. From the Sachs report it is clear that Zola Skweyiya did not at any stage visit the detention centres where Thami Zulu was held". (p.45)

'So much for the post of Officer of Justice and the Code of Conduct.

'At the critical point of attempting to identify who might have administered the poison to Thami Zulu, the investigation by Sachs and his commission, I argued, "breaks down. There could not be a greater contrast between the scrupulous manner in which medical forensic detail has been accumulated and assessed, and the absence of forensic investigation subsequent to these findings". Those who supplied the poison administered to Zulu "were almost certainly ANC members, and perhaps very senior members. This point is simply not canvassed. There is no attempt to compile a list of people who had seen Zulu in the two days before his death. ...The investigation disappears into a hole".

For a legal figure of Sachs's stature to have failed so disgracefully in such an elementary matter of law, I argued, was to "deceive his readers". (pp.46,48)'

This lengthy quotation summarises the principal facts and of my argument. It is necessary to add that forensic examination found that diazinon, an organic phosphorus pesticide that had been used by apartheid state agents as a poison, had been administered to Thami Zulu, as Gordin writes, in the "equivalent of three pints of beer. Alcohol is one of the few liquids in which diazinon is soluble and which could hide the taste of the pesticide". (Gordin, Zuma, p.37)

Gordin cites my article on pages 311-312 of his book and does in fact add one further dimension to the complexities of this case, a subject I believe to be of crucial significance for constitutionalism, jurisprudence, just governance as well as the writing of history and biography in South Africa.

The new dimension provided by Gordin in his coverage of this issue lies in his quotation from "Someone who at the time worked very closely with Zuma in counter-intelligence, and prefers to remain anonymous" (p.38). This anonymous person, previously a member of iMbokodo, told Gordin that if the ANC security department had so wished, Thami Zulu (also known as "TZ") could easily have been killed while in detention under its own hand, instead of five days after it had released him. The anonymous former iMbokodo official argues that this proves that the ANC security department was not responsible, and that TZ's murder "seems a security branch [ie, apartheid state] kind of thing to me".

The question posed by this official is worth quoting in full: "We had him in detention for 17 months and could have killed him then if that is what we wanted to do. Why would we kill him when we had just released him?" The official goes on to state: "Certainly, JZ [ie, Jacob Zuma] didn't order his death". (in Gordin, Zuma, p.38).

At this point, Gordin ends his inquiry into the affair. It was precisely at this point that a barrister or investigative journalist or historian should have inquired further.

Gordin has provided an important service by providing readers with this response from within the heart of iMbokodo, just as he was right to cite a further important fact, which does no credit to Zuma. As Gordin writes, "In his testimony to the TRC,TZ's father, Philemon Ngwenya, a retired Soweto headmaster, said he had gone to Lusaka to see Zuma about TZ after he was arrested - but had been fobbed off with false assurances or 'lies', and that Zuma had then refused to see him, even though he, Ngwenya, had 'waited and waited for 18 days' in Lusaka'". (in Gordin, Zuma, p.37).

Gordin's problem is that he has not done adequate research into the murky crucible in exile in which the ANC's progress to government was forged, and that he concluded his inquiry too soon.

Evidence given to the TRC by Thami Zulu's parents on 26 July 1996 is available here for the whole world to read. It is one of terribly many heartbreaking pieces of testimony given to that noble inquiry, but it has a particular bearing on the conduct as responsible commander in exile of the man now likely to have the fate of South Africa in his hands, as the future President of the country.

Allowing for errors in typing, this is what the minutes of the TRC record Mrs Ngwenya as saying about the death of her son: "Diazinon that was found in TZ would have been ingested two days before his death. There were very few people who were in contact with TZ during that period. When he was released, he was released to Dr Ngijima. There are very few people who were with him. So the ANC could have followed that up and by now we would be knowing who poisoned him.

"Some of them, some of these people were Chris Hani, Jackie Modise [the wife of the late Defence Minister and Umkhonto commander, Joe Modise - PT], Dr Zakes Zumukai and Dr Ralph Ngijima. Why is the ANC not finding out who poisoned TZ?

"On page 15 of the report, the medical treatment of detainees was said to be left in the hands of a medical orderly, and not doctors. We have evidence to prove Dr Prem [Dr Pren Naicker - PT] was treating TZ, who was Dr Prem reporting to? Because the head of health says no one reported to him about TZ".

Thami Zulu's father, Mr Philemon Ngwenya, the head of a Catholic family, sharply posed and repeated the obvious question: "It is a question mark. Who poisoned my son and why? Who poisoned my son and why?"

The argument by the anonymous official from iMbokodo, left unchallenged by Gordin, is unsatisfactory. It does not address a crucial fact, of which iMbokodo was only too well aware: the murder of TZ in detention in Lusaka by iMbokodo would have caused a huge rift among ANC exiles and torn the organisation apart on the very eve of its unbanning, by reigniting the very issues relating to abuses by iMbokodo which had given rise to the mutiny in Umkhonto in Angola in 1984 (see here and here).

Proof of this lies in the election to the most senior positions in the ANC Regional Political Committee in Tanzania in September 1989 - representing the largest number of ANC exiles anywhere in the world - of two former leading representatives of the Angola mutiny of 1984 and denizens for four years in Quatro prison camp in Angola: Omry Makgoale (combat or travelling names Sidwell Moroka and Mhlongo, elected chairman of the RPC) and Mwezi Twala (travelling name Khotso Morena, elected organising secretary). As Twala wrote in his autobiography, Mbokodo. Inside MK: A Soldier's Story (with Ed Benard, published by Jonathan Ball, Johannesburg, 1994) - one of the seminal first-hand accounts of South African history of the past 40 years - the RPC in Tanzania under his and Makgoale's leadership had promised to become the "most powerful and influential body of the whole ANC East African region". (p.109) The National Executive Committee of the ANC, of which Jacob Zuma was a member, with headquarters in Lusaka, then declared the results of this democratic election null and void, and forcibly dissolved all elected committees in Tanzania. This was carried out by Chris Hani and the late Stanley Mabizela (later, South African High Commissioner to Namibia) in late December 1989, six weeks after TZ's murder.

At the same time there was also very poor morale among the bulk of Umkhonto troops in Zambia, who had been transferred there from Angola the previous year under the Crocker Accords, which had required the removal of Cuban, Soviet and ANC personnel from Angola as the precondition for the independence of Namibia. As reported by an Umkhonto Military Intelligence officer, Bill Anderson, to Howard Barrell, living conditions for Umkhonto troops in Lusaka at the time of TZ's detention and murder were appalling. An atmosphere of hostility towards the Umkhonto commanders had developed, and there were even certain residences where comanders could not enter for fear they would be shouted down. (Interview with Bill Anderson, 8 April 1991, pp.26-27. Karis-Gerhart Collection, Folder 1. Historical Papers, University of the Witwatersrand).

Under these circumstances, while iMbokodo certainly had the physical means to have killed TZ in its prison in Lusaka "if that is what we wanted to do", as the anonymous iMbokodo official told Jeremy Gordin, then the political conditions within the ANC in Tanzania and among Umkhonto troops in Zambia argued very powerfully against it.

There is no doubt that TZ was a very popular commander among the troops. The laudatory nature of his funeral address by Joe Modise (commander of Umkhonto weSizwe ) and Chris Hani (chief of staff), cited by Mr and Mrs Ngwenya in their evidence before the TRC, is proof of that. TZ's murder in detention by iMbokodo would have caused an uproar.

Gordin does not examine the possibility that the murder of Thami Zulu immediately after his release might well have suited iMbokodo much better than his murder within their own prisons. This does not solve the mystery of TZ's murder. But it does eliminate the cogency of the argument from within iMbokodo, with which Gordin prematurely closes his own inquiry.

In support of the demand for truth from TZ's parents, one might add, further: if iMbokodo did in fact suspect that TZ had been murdered by apartheid state agents as a "security branch kind of thing", why has no evidence ever been produced to show that iMbokodo created a proper crime scene as part of its investigation? As Mrs Ngwenya argued, very few individuals had access to TZ in the five days before his death. Did ANC security interview them; and if not, why not? If iMbokodo did interview all these individuals, why was this information not presented to the Sachs Commission when it began its proceedings early in 1990? If this information was presented to the Sachs Commission, why was it not presented in the Commission's report? In any case, why did the Sachs Commission not make it its business to interview these witnesses itself?

Effectively, through its neglect of elementary judicial and forensic procedure, the Sachs Commission either compounded what amounted to criminal negligence and incompetence on the part of iMbokodo; or else it colluded with iMbokodo to shield a crime. The Commission neglected to make inquiries and/or draw up a list of: (a) all people who had access to TZ in the five days between his arrival in Ralph Ngijima's house and his death; (b) the person/persons who brought beer to the house, and from where it was obtained; (c) any person or persons who drank with TZ in a period up to 48 hours before his death; and (d) whether or not any such people suffered any ill effects after drinking with TZ, or whether he was the only person.

The senior official responsible for counter-intelligence in the ANC, under which this travesty took place, was Jacob Zuma.

Whatever else its merits, Gordin in his biography of Zuma fails to follow up the argument about a basic and elementary failure in police, prosecutorial and juridical work on the part of the ANC, as indicated by the parents of Thami Zulu, by Patrick Laurence, in my article of 1993, and no doubt from many other sources too.

This is an indictment upon the Sachs commission, the ANC as the organisation that appointed it, the legal structure of the South African state in which the commissioners (including Sachs) have subsequently held various posts, and the senior office-bearer responsible for counter-intelligence in the ANC at the time of Thami Zulu's murder, Jacob Zuma.

This case remains open.

Click here to sign up to our free daily headline email service