In his perceptive study Civilization and its Enemies, Lee Harris writes that “Individual civilisations rise and fall; in each case the fall was not inevitable but due to the decisions — or lack of decision — of the human beings whose ancestors had created the civilisation for them, but who had forgotten the secret of how to preserve it for their own children. We are ourselves dangerously near this point.”
Harris writes of a global threat, but his warning has equal application for the condition we find ourselves in at present in this country. Fifty-three years ago our predecessors proclaimed the Freedom Charter.
Twenty-five years ago the founders of the United Democratic Front proclaimed that we want all our rights now. These movements created a legacy of a principled fight for a rights-based democracy — a country that would guarantee political, social and economic rights for all. This rights-based society would replace the rule of racist caprice, and institutions would be created to develop this vision and promote the overall transformation of the country.
Within but 14 years the legitimacy of these very institutions, installed with such hope in 1994, have been ripped apart. Two examples must suffice. Claims that the judiciary went on the “rampage” by means of no more than a single statement that the members of the Constitutional Court had laid a complaint against Judge President John Hlophe are asserted without any reference to the fact that, on the judge’s own version, as claimed in court, he may well be guilty of improper judicial conduct. Thus possible interference with the judicial function becomes less important than a public statement of complaint.
The second example is even more serious. It concerns the debate about dropping the prosecution of Jacob Zuma. Among the reasons offered in support of this campaign is the claim that Zuma will never be able to obtain a fair trial. The reason: judges cannot adjudicate impartially in this case. No basis is given for this bold and damaging allegation that a judge appointed to hear the case would not exercise an impartial mind in applying the law to the proven facts. Oddly there was no complaint from the same quarters when Zuma was acquitted of rape.
Whatever the merits of the claim, there appears to be a widely held view that judges are, almost to a person (Hlophe presumably excluded), incapable of performing their judicial tasks. This approach has some remarkable features. Within less than 24 hours a range of political luminaries had obviously read carefully through the 100 pages of Justice Pius Langa’s dismissal of the Zuma and Thint appeals — and they have rejected its jurisprudence. It is, of course, possible to disagree with this judgment, but to claim that its close reasoning is no more than an act of political bias is truly an astonishing act of cavalier politics.
For some this situation might be an important motivation to support a possible deal between Zuma and the National Prosecuting Authority. After all, it is probably true that, had Zuma not been the political opponent of President Thabo Mbeki, he would not have been the subject of criminal trial. So, for many, the present position is highly unfair to Zuma and it is tempting to end the entire sorry episode, which has created the conditions for the assault on all institutions brought in to deal with this case.
The ultimate decision about dropping charges is thus not about morality but pragmatism, produced by the present balance of political forces. If there is no trial there will be no need to attack judges and prosecutors for doing their constitutionally mandated jobs. The democratically elected leader of the ANC can then lead his party into the next election and duly become the country’s president.
But what precedent is then established? As long as an accused can mount a sufficiently skilled legal operation to delay a prosecution, coupled with getting as many supporters as possible on the streets to claim political chicanery against their hero, the precedent will be invoked time and again. Accountability will disappear and so will the rule of law, where decisions of this kind must be taken by independent judges.
The question then becomes: If a deal is struck that aborts the present prosecution, how is Zuma going to call off the “constitutional dogs of war” to restore a belief that the Constitution and the institutions that underpin it are critical to our democracy? How will he convince us that populist tsunamis will not be successful in the future in subverting the legal system? Failure to answer this question meaningfully will surely jeopardise that which we should pass on to our children — a transformative, rights-based society.