Earlier this year I came across a particularly relevant article by Professor Hennie Kotze of Stellenbosch University, which analysed public attitudes to the criminal justice system. The research painted a predictable but disturbing picture.
The elite — defined as representatives from Parliament, civil service, business, media, trade unions, NGOs, churches and agriculture — had a very low level of confidence in the institutions that make up the criminal justice system.
In short, only a minority of the elite sample of the survey reported a measure of confidence in the system and, significantly, those who claimed to support the African National Congress showed even less confidence — 66% reporting that they had not very much or no confidence in the criminal justice system.
By contrast, members of the public hold the system in high esteem — only 36% hold similarly gloomy views. When the question of confidence in the criminal justice system was investigated in more detail, the picture became even more disturbing.
In a summary of the answers to a series of questions — dealing with police conduct, level of sentences imposed, magistrates and judges being in touch with what ordinary people think, the constitutional rights enjoyed by the accused — 70% of the elite group and 53% of the public held negative or strongly negative attitudes towards the system.
Such negativity can only serve to undermine the legitimacy of the system and its component parts.
That, in turn, must contribute in the long term to a serious threat to the viability of our constitutional enterprise. It is within this context that the recent decision by National Director of Public Prosecutions Bulelani Ngcuka not to prosecute Deputy President Jacob Zuma must be analysed.
Firstly, there is a need to deal with the positive side of this saga. The government has allowed the Scorpions to conduct an investigation into the conduct of the second-most senior politician in the country. It may, through various channels, have sought to put pressure on the Scorpions. Cabinet ministers may well have vented their spleen at Minister of Justice and Constitutional Development Penuell Maduna for diligently doing his job and insisting the law should take its course, and that Ngcuka could have been subjected to “comradely advice” to desist from further investigation. All this is possible.
However, where in the world would a deputy president have been subjected to a public investigation without any pressure being exerted by his supporters?
One only has to look at the shenanigans of Tony Blair’s Labour government in Britain and the sleazy activities of Alistair Campbell to realise that we are about as good as it gets in the real world of accountable democracy.
The openness within which the Scorpions’ investigation has been handled to date only adds to the disappointment of Ngcuka’s decision not only to desist from prosecuting, but announcing as much at the same time as suggesting that the Scorpions had a prima facie case against Zuma.
If this statement is given its usual meaning, it means the Scorpions have evidence of such a nature that, in the absence of further contrary evidence from the other side (in this case, Zuma’s), this body of prima facie evidence would convert into the conclusive kind and a conviction would follow.
For this reason, the public are entitled to ask why the prosecution did not do what it should in a case where it has this kind of evidence —and that is to prosecute and allow the court to make the final determination.
In the light of such a confident proclamation of the nature of the evidence in its possession, the decision of the agency not to prosecute is unsatisfactory.
Not only Zuma but the public is entitled to a proper explanation for this curious decision. At the very least, Ngcuka could have said that he does not have a prima facie case and that, rather, he has one that would put to Zuma the proof of his claim of innocence. He could then have recommended a parliamentary inquiry into what is now a sword of Damocles over the deputy president.
The upshot of this decision will be to bring into question the independence of the Scorpions and arguably hasten the unit’s incorporation into the vortex of the police force.
That would be unfortunate, because the Scorpions are able to redress the lack of public confidence in South Africa’s criminal justice system.