The statement by retired chief justice Arthur Chaskalson and advocate George Bizos reproduced on this page is both measured and timely. Whatever the merits of the argument that Jacob Zuma will not be able to obtain a fair trial, this is surely a matter for the judiciary to decide.
The Constitution provides an accused with a range of rights, including the right to a fair and expeditious trial. Doubtless Zuma’s hugely experienced legal team will put all the arguments raised by his supporters in public as coherently as is legally possible before a court. Then it will be up to the judiciary to decide whether a fair trial is possible.
Make no mistake, this is a dangerous moment. To argue that a fair trial is impossible imperils constitutional democracy itself. That is the meaning of the Bizos/Chaskalson statement.
For critics to rubbish the authors, both hugely esteemed human rights jurists, is plain silly; but to contend that the matter of a fair trial should be settled politically rather than legally is far more pernicious. It promises to create a precedent, for which we may yet pay dearly.
Ironically, the judiciary has, to date, served Zuma with great fairness. No one on his side of the debate appeared to claim illegitimacy of the courts when an apartheid-appointed judge correctly acquitted him of rape. And every argument raised to date about the unfairness of the impending prosecution can and will, if argued, be examined impartially — all the way up to the Constitutional Court.
Of course, it is a huge test for a nation-in-becoming when a leader democratically elected by the ruling party is charged in this fashion. But if it is finally determined that a fair trial is possible, then it is in the public interest that Zuma have his day in court. He may be found guilty, or he may rebut the case against him and move on to assume the highest office in the land — but only after abiding by the rules of a system that can only work if applied to all citizens. If, of course, it is determined that the trial can no longer be fair, then that too will be the end of the matter.
A significant part of the problem has been caused by perceptions of political interference with the prosecuting authority. These perceptions are based upon a series of unfortunate developments. The presidential suspension of Vusi Pikoli — which continues to hang depressingly over the legal system — and the interminable delay in deciding to prosecute Jackie Selebi are but two key examples. In turn, the integrity of key parts of our constitutional democracy has been weakened. Small wonder that allegations of political interference loom large.
Constitutional democracy does not exist in a vacuum. Crucially, it depends on core institutions, including the judiciary and a prosecuting authority that must be left to perform its tasks without outside interference. These institutions can only continue to operate if they enjoy public legitimacy.
It is disturbing to hear unsubstantiated claims repeated with great frequency on innumerable talk-radio shows that the judiciary is illegitimate, partial and incapable of dispensing justice. That kind of discourse is directly attributable to the argument now being advanced to the effect that it is not in the public interest for the law to take its course in the Zuma case.
Translated into practice, that means that political pressure places the powerful above the law. Legal institutions become mere tools to perpetuate existing forms of power.
This would turn the promise of the Constitution into a certainty of unaccountable autocracy. Millions of South Africans did not struggle over the better part of a century for such an abomination.