I may as well state the facts up front. This article is not about the Jacob Zuma rape trial. It is best to be clear about this to avoid the passionate disquisitions and name-calling of ”objective” intellectuals and ”biased” partisans alike.
I find it strange that in all the buzz about South Africa’s transformation — particularly the transformation of the judiciary — one subject has not been broached. That is the idea of jury trials, as opposed to the current system where one man (less often, one woman) sits in judgement — not over matters of law, but over the evaluation of evidence.
This is curious to say the least. The issue is not whether a trial by jury is more objective or just, or that it serves the interest of justice better that the current system. I am sure — from my layman’s perspective — that there must be volumes of books written on the merits and demerits of each system.
The greater issue is the legitimacy of the judicial process and the claims of citizenship, especially in multicultural societies where the very notion that an accused be subject to the judgement of his or her peers acquires a more significant dimension than originally intended by those who dreamt up the phrase.
If I were a judge in South Africa today, I would pray for the day when I would be pronouncing only on matters of law, and leave the weighing and evaluation of evidence to a jury.
Since neither judges nor lawyers make the law, matters such as this rest with the citizens. If, as citizens, we are willing to take one person’s opinion of ”beyond reasonable doubt” as good enough for us all, then so be it. But I doubt that this is the case.
As I write this, I can think of all kinds of untidy scenarios and statements, and I dare not imagine what the legal fraternity (what an awful description!) would think about them. Witchcraft, superstition or ”irrational” subcultures — the typical nightmare of the Enlightenment dream of Reason and the Law.
So what would a juror born in the rural Eastern Cape or on the Cape Flats think is beyond reasonable doubt in evidence that is underpinned by cultural beliefs and practices, or the everyday life and practices of recognisable subcultures? If the value of evidence has become so unstable, so undecideable, why do we pretend that we can still allow only one opinion as to its plausibility?
One reason that immediately comes to mind is that to allow a jury to decide these matters, you must think of your citizens as being creatures of Reason with a capital R; they must be ”civilised” beings who will not bring with them all the primitive, unreasonable baggage or superstition that works against the principles of the law.
The law, remember, is founded on reason, and for justice to be done, it must not be seen to negate this principle. Juries are supposed to discuss and debate the evidence from this standpoint and arrive at a verdict that people of reason will see as just. We can all agree that this civic duty cannot be entrusted to madmen or morons or children.
I cannot think of a single former British colony in Africa that has a jury system. But in these post-apartheid times, why isn’t there a jury system in South Africa? And more importantly, why is nobody asking why not? I am not sure where the answer lies, but I can think of whole spectrum of excuses, from the stereotypical to the absurd.
”A jury is no guarantee that justice is better served.”
”We are already complaining of capacity problems, you wait until political correctness brings a jury system and we’ll be fully and finally fucked!”
”Just think, if you have to provide protection for jurors when we are still struggling to protect witnesses.”
”Ag, man, this is South Africa not America! One judge in danger for his life is better than 12 innocent people dodging bullets.”
And so on. But underlying all such excuses is a fundamental distrust of the citizen, or of his or her ability to meet the responsibilities of citizenship.
Freedom Day, Human Rights Day and all the days that have been memorialised in the calendar and sanctified with public rituals of remembrance and celebration will mean very little if we still think of our people as incapable of citizenship in its fullest expression.
Harry Garuba teaches at the Centre for African Studies and the English department at the University of Cape Town