The claim that criminal prosecutions involving ANC president Jacob Zuma amount to political trials is nothing new.
In a statement made in June 2005 on the Schabir Shaik judgement, trade union federation Cosatu said the trial “confirm[s] a long-held view by Cosatu that — [Shaik’s trial] was nothing but a political trial of the deputy president [then Zuma] in absentia”. Zuma’s rape trial was similarly described as a political trial.
In political theory the term “political trial” has a specific meaning. The term is attributed to philosopher Otto Kirchheimer, who wrote in his seminal study, Political Justice: The Use of Legal Procedures: “Throughout the modern era, whatever the dominant legal system, both governments and private groups have tried to enlist the support of the courts for upholding or shifting the balance of political power.”
The term political trial is difficult to define, but it usually takes the form of a criminal prosecution of a political opponent of the ruling party for breach of a law designed to ensure the maintenance of the status quo, generally termed a “security law”. Classic South African examples of political trials are the treason trials of the 1950s, the Rivonia Trial of 1963 and various terrorism trials under the 1967 Terrorism Act.
Zuma’s prosecution on corruption charges is clearly not a political trial of this kind. But political trials cannot be confined to prosecutions under security laws. They may take the form of a defamation action designed to destroy the credibility of a political figure or of a prosecution for an ordinary criminal offence.
American academic Richard Posner says the term “political trial” may refer to any trial in which a person is tried for engaging in political opposition. The most common type is a partisan trial, which consists of criminal legal proceedings instituted by the government to solidify its power and extinguish its opposition. Notorious examples of partisan trials are the trials by the Volksgericht (so-called People’s Court) in Nazi Germany and the trials in Stalinist Russia where many of the judges, prosecutors and defence attorneys served as instruments of terror for their totalitarian leaders.
When Zuma’s supporters claim that the trial against him is a political trial it is this kind of trial to which they are referring: prosecuting someone merely because he is a political opponent.
Posner says a trial is characterised as political when it presents a question that transcends the narrow issue of guilt or innocence by implicating larger societal and cultural considerations. The Zuma prosecution is, of course, political in this broader sense of the term.
As one of the three branches of government, the judiciary is an inherent part of the political system. It can therefore be argued that all trials have a political element.
While it is questionable whether Zuma’s trial is a political trial, unless one adopts the broadest meaning of the term, it is evidently not a show trial. In a show trial, the conviction of the accused is a certainty or a near-certainty. Show trials are highly public trials in which the guilt of the defendant is predetermined. They show little regard for the letter or the spirit of the law. Defendants usually have no real opportunity to defend themselves and have often signed statements under duress or suffered torture prior to being tried.
As Zuma was acquitted on the rape charges there can be no question of that trial being a show trial. And because there is no reason to believe that the fair-trial guarantees entrenched in the Constitution will not be observed, there is no reason to believe his corruption trial meets the description of a show trial either. His claims that the corruption trial will be a political trial might mean nothing more than a trial that is of interest to the public. But we should analyse terms such as “political trial” more closely. If such terms are thrown around loosely without questioning their meaning, we are encouraging a culture of impunity and vacuity.
Dr Mia Swart is a senior lecturer at Wits Law School