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Defending the rights of alleged criminals is the law

When the alleged Boeremag members return to the dock in the Pretoria High Court on Monday they will have with them an unseen and uncharged co-accused — the right to be presumed innocent and to have a fair trial.

The 23 men are expected to return to the Pretoria courtroom to face 43 charges including murder, terrorism and sabotage.

Public clamour has all but con-victed the men. The Legal Aid Board has been severely criticised for using taxpayers’ money to fund the defence of men who have openly said they do not recognise the authority of the democratic South Africa and its institutions.

Not that the Boeremag members are the first accused or suspects to incur public ire before they get their day in court and sometimes after that.

Many have expressed their outrage at the fact that suspects injured in the course of committing crimes often get better medical treatment than the law-abiding citizens they wound.

Some have complained that the R90 a day spent on the 180 000 prisoners in our jails is too much. This is made even harder to swallow when Minister of Correctional Services Ben Skosana tells us that half of these people will commit crimes again once they are released.

In short, we are a society that is yet to really buy into the constitutional imperatives guaranteeing the rights of those we believe are a menace to society.

But if we allow ourselves to get carried away and do not defend the rights of those who in our gut we believe are the personification of evil, we risk eroding the rights we proudly tell everyone are part of one of the most liberal Constitutions in the world.

Once upon a time the Americans laid claim to similar chest beating about their rights. Today, with the advent of the Patriot Act, the jury is out on whether Americans in the same position as the Boeremag trialists would enjoy the same rights as our home-grown terrorism suspects.

The Patriot Act, which was passed shortly after the September 11 2001 attacks, expands the United States government’s power to investigate suspected terrorists. Its opponents say it has stripped Americans of some rights they thought were fundamental and inalienable.These rights include the rights to legal representation, liberty and to a speedy and public trial.

Furthermore, the Patriot Act empowers the US government to deny lawyers to its citizens accused of crimes as defined in the Act. It also allows for anyone to be jailed without being charged and denies them the right to confront witnesses against them. The government may jail anyone indefinitely without a trial, including US citizens.

Others say it is too soon to judge the Act before it is interpreted by the US Supreme Court.

Whatever the Patriot Act means, we should be grateful we are not there. At least not yet.

We in South Africa have already had to wipe egg off our collective face after we had convicted the six men of raping Baby Tshepang, only for the courts to find that someone else, and he alone, had desecrated the nine-month-old infant in November 2001.

An internationally respected scientist still walks among us, even though if a plebiscite were to be held he would be put behind bars and the keys dropped into the sea from a helicopter, or his underpants poisoned as it was alleged he had done to his victims.

In other words, it would be good for all of us to prepare ourselves for the worst/best case scenario (depending on ideological leanings) of the Boeremag accused being acquitted.

The Boeremag case gives us an opportunity to teach Americans what we mean when we say that our Constitution guarantees all of us, citizens or not, that we will be presumed innocent until proven guilty. It will showcase our commitment to the belief that we will have a fair trial and where we cannot afford a lawyer, one would be appointed for us at the state’s expense if lack of legal counsel could lead to a substantial injustice.

If that happens and ordinary South Africans start seeing the wisdom thereof, then the principles in the Constitution will walk out of the Palace of Justice triumphantly, whichever way the verdict goes.

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