Persecution? Prosecution?

Point: Jessie Duarte

If there is anything that our apartheid past has taught us it is that the integrity, credibility and independence of the judiciary are essential parts of a democratic society. That is why the ANC has been resolute in its determination that our courts must safeguard the rights of citizens and uphold our laws.

In part it is our determination to break away from the past that has informed the approach we have taken in the case against ANC president Jacob Zuma.

One of the tactics that the old Special Branch liked to use against anti-apartheid activists was to arrest them on one charge and then add extra, usually unrelated, charges as their court date approached. The plan, it seemed, was to keep them in court—and out of action—for as long as possible.

This tactic comes to mind as one reviews the persecution of Zuma over the past eight years or so. Not only has the scope of charges been expanded in the latest indictment, but over this period the National Prosecuting Authority (NPA) has sought to achieve a critical mass of public suspicion against him.

Police are usually presented with a crime and then try to identify a suspect. In this case they already have a suspect. They must now scratch their heads to find a suitable offence.

When he appeared in the Pietermaritzburg High Court last week on an application to have the charges against him set aside, Zuma had already stood trial in the court of public opinion and had already been found guilty by many in the media and other influential circles. Of course, many others, probably the majority of South Africans, have not made such a determination.

As is evident from the number of people who have turned out to support him, many ordinary people believe he deserves a fair hearing. Many of them join the ANC in maintaining that not only is Zuma being prosecuted; he is also being persecuted.

From the moment it emerged that Zuma was under investigation, a number of state institutions have relentlessly pursued him. No one is disputing the right, indeed the responsibility, of these institutions to investigate such matters and where necessary initiate a prosecution. But people are taking issue with the way in which these institutions have conducted themselves.

The first indication that this was not a normal investigation was the off-the-record briefing held by former national director of public prosecutions (NDPP) Bulelani Ngcuka with a select group of editors—a secretive attempt to recruit them as partners in a public crusade against Zuma.

This set the tone for an informal media campaign that ran parallel to the formal legal processes, fuelled by what appeared to be deliberate leaks. It was as if certain media outlets had set up office in the NPA’s headquarters.

In 2003 Ngcuka announced that although they had established a prima facie case they would not prosecute Zuma, leaving him in the untenable position of being a suspect indefinitely. Instead of having an opportunity to defend himself against these accusations in court, he was tried by proxy through the trial of Schabir Shaik. In 2004 the Public Protector found that Zuma’s right to human dignity had been unjustifiably infringed upon by Ngcuka’s statement and that he had therefore been improperly prejudiced.

Following Shaik’s conviction in 2005, the world was advised that Zuma and Shaik had had a “generally corrupt relationship”. Though it was pointed out much later that Judge Hillary Squires had not uttered such words, the damage had been done.

The NPA brought charges against Zuma in 2005. But the following year the case was struck off the court roll because the NPA was not ready to proceed.

After much delay, and more leaks, the acting NDPP brought fresh charges against Zuma in an unseemly hurry just a few of days after Christmas last year. Having rushed to serve the indictment, the NPA then set a court date for eight months hence.

The Constitution requires that every accused person has a right to “have their trial begin and conclude without unreasonable delay”. Jacob Zuma has been denied this right.

The Freedom Charter declares that “all shall be equal before the law”. This principle, which is enshrined in the country’s Constitution, means that no one is above the law and that all citizens must have equal access to the rights and protection of the law.

The ANC does not seek special treatment for Zuma. It simply seeks justice. But justice does not begin at the courtroom door. It begins long before a case even comes to trial. Justice needs to be present when a person is being investigated, when evidence is being gathered, when that investigation is made public, when charges are being formulated, when an indictment is served, when a trial date is being set and in the conduct of all state institutions at all times.

It is a fundamental legal principle that justice must not only be done, but it must be seen to be done. In the case of Zuma, justice has not been done. And it has been seen not to be done.

Jessie Duarte is an ANC national executive committee member and national spokesperson

Counter-point: Sam Sole
The essence of the rule of law is the demand for rationality.

The courts are not only vital arbiters of disputes, they constitute the backbone of a system of decision-making based on evidence, questioning and logical reasoning. So the ANC’s criticisms are not just an attack on the judiciary, but also an attack on a rational system of government in favour of one based on propaganda and power.

Let’s take the claim that Jacob Zuma’s trial is a political one. Little evidence has been marshalled in support of this campaign, which has several sub-themes.

  • Innocent until proven guilty

  • The prescription that an accused person must be presumed innocent is part of the Constitution’s “fair trial rights”. It is about the onus of proof in a court, not the abandonment of common sense. We all make judgements about people without the benefit of a court of law finding them guilty.

    President Thabo Mbeki was entitled to dismiss Zuma based on the evidence of his conduct that emerged at the Schabir Shaik trial.

    The ANC is entitled to insist it believes in Zuma’s innocence. What it may not do is insist we all, media included, have to behave as if he must be innocent. The presumption of innocence is a legal requirement, not a moral absolute. It’s an argument that avoids having to deal with the question of why we really need Zuma so badly, despite his character flaws.

  • There is no real case against Zuma

  • In fact Shaik is sitting in jail based on a similar set of evidence. The Zuma case was thrown out in 2006 largely because challenges to the raids on Zuma had not been settled and the state was not ready, not because there was no case.

  • There is a political conspiracy against Zuma

  • Again there are two levels operating here: in this instance the court of public opinion operates in Zuma’s favour. But in court the onus is on Zuma to prove this claim—and he has struggled to do so. So far the best he has come up with is Bulelani Ngcuka’s off-record briefing to black editors before announcing his decision to charge Shaik but not Zuma. If Ngcuka’s decision was tainted, it appears it was as much in Zuma’s favour as against him. If Zuma had been charged then, the outcome of the Shaik trial suggests he might already be in prison.

    Ngcuka might have wished to bury Zuma politically rather than charge him, but he may also have wished to save Zuma and the ANC the humiliation of a trial. But it was Vusi Pikoli who took the decision to charge Zuma—and the decisive outcome of the Shaik trial left him little choice.

    All the evidence in the Ginwala inquiry has demonstrated Pikoli’s inclination to resist political interference. The decision to re-charge Zuma was taken by Mokotedi Mpshe, requiring yet another link in the chain of alleged conspirators.

    The addition of tax charges could demonstrate zealousness rather than persecution—and if they are overblown, the court will throw them out.

  • Zuma can’t get a fair trial

  • This focuses mainly on delays and the so-called “trial by media”. The investigation began in 2001. The decision not to charge Zuma was made in 2003, which all but suspended investigation of him while Shaik was put on trial. Shaik was convicted in 2005 and Zuma was charged a few weeks later. Since then at least some of the delays have been as a result of various legal challenges brought by Zuma. These are his right, but he cannot also complain about the delays they have brought about.

    The separation of Shaik and Zuma’s trials may have been unfortunate, but it is not obvious that this has prejudiced Zuma’s fair trial rights. Zuma may also have taken flack in the media, but he has also mounted an effective fight-back campaign in the court of public opinion. But this is not where trials are decided.

    In the end, it is for a court to decide whether procedural or political factors have fatally prejudiced Zuma’s rights to a fair trial. The real problem is that the ANC seems unwilling to leave this decision to the courts: the very weakness of the ANC’s case is demonstrated by its grotesque attacks on the credibility of the Constitutional Court.



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