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12 Sep 2008 07:05
Much has been made in recent months of what will happen if the criminal trial of Jacob Zuma goes ahead, or if it is forestalled by a political deal that buys ‘stability” at the price of justice.
Far less has been said about the possibility that KwaZulu-Natal Judge Chris Nicholson will agree with the ANC president’s legal team that the National Prosecuting Authority should have consulted Zuma before recharging him with fraud and corruption.
Such a judgement must be considered a real possibility. If that is what happens, it will be a stern test for supporters of judicial and prosecutorial independence.
Should Nicholson’s judgement go against Zuma, the likely outcomes are relatively easy to predict.
The court process will move on to Zuma’s application for a permanent stay of prosecution.
With it the political temperature will rise even further as he prepares to make out in detail a case that he cannot get a fair trial because his enemies in the ANC and the National Prosecuting Authority have conspired to frustrate his presidential ambitions.
That case, it has been strongly suggested, could include putting President Thabo Mbeki on the stand, with senior Cabinet ministers. It would certainly have to subject the inner workings of the ANC to detailed, rigorous and embarrassing scrutiny.
That would be enormously risky for the party and almost impossible to manage politically.
Meanwhile, the street-level violence that accompanied Wednesday’s protest in Durban would likely continue and Zuma’s lieutenants, including communist chief Blade Nzimande, union boss Zwelinzima Vavi and youth leader Julius Malema, would persist in threatening more of it if the trial goes ahead.
The serious fears that have been growing in civil society, the investment community and large sections of the ANC itself about the erosion of the rule of law, would then deepen further and fresh momentum would be lent to the nascent civil society coalition that has begun forming in response.
It is much less clear what will happen if Nicholson finds for Zuma. If he does, it is not just the ‘Kill for Zuma” brigade who will have to be very careful in fashioning a response.
All along some voices have argued that while a ‘political solution” for Zuma would seriously undermine a court finding that has the effect of sparing him a trial would have to be accepted. Suspended national director of public prosections Vusi Pikoli, who is loathed by the Zuma camp, said as much this week in an interview with the Mail & Guardian.
But such a fine distinction has tended to be drowned out by the war talk from the Zuma camp and the defence of the judiciary mounted in reaction.
The ANC will have to climb down dramatically if the judgement favours Zuma.
Its secretary general, Gwede Mantashe, has suggested that judges are counter-revolutionaries ‘poised to pounce” on his party. How will he explain a conclusion favourable to the ANC from a white judge—albeit one with unimpeachable struggle credentials—who, with his colleague Kevin Swain, handed DA leader Helen Zille a major victory in the Cape High Court last week?
Swain and Nicholson’s stinging conclusion was that the Erasmus Commission of Inquiry into allegations of illegal spying by Zille’s city council was a politically motivated abuse of state institutions by former premier Ebrahim Rasool. Parallels were swiftly drawn with Zuma’s claims that he is the victim of similar abuse.
However, the issue before Nicholson is whether the decision to recharge Zuma last year, after the striking from the roll of earlier charges, was made on ‘a clean slate” as the NPA’s counsel, Wim Trengove, put it, or whether old charges were being reformulated. In that case, Zuma’s legal team argues, the Constitution requires prosecutors to invite fresh input from him.
Both Zuma and Malema appear to have been preparing to climb down from attacks on the judiciary in the event of a favourable judgement and the ANC has toned down its rhetoric over the past fortnight.
On Tuesday Zuma reaffirmed his belief ‘in the rule of law, the independence of the judiciary and the constitutional mandate of our judiciary to be the final arbiters in disputes”.
‘We will never undermine these institutions, we seek to protect and strengthen them, as the ANC has always done since 1912,” he reportedly told an audience at the University of Johannesburg.
On Wednesday Malema was quoted by Independent Newspapers as threatening to ‘eliminate” forces opposed to Zuma, but saying of Nicholson: ‘We believe in the judge because he looked very sober.”
He added confidently that ‘Zuma will be released on Friday”.
Zuma’s attorney, Michael Hulley, also sounded buoyant on Thursday, saying he was cautiously optimistic.
If he is right, there will be complex challenges too for those defending the judiciary against attacks.
A fairly broad swathe of opinion saw the recent finding against Zuma as a test of judicial independence. The Constitutional Court was damned by many in the ANC, but praised by civil society, opposition parties and the media, for finding against him and the French arms firm Thint in the face of the intense pressure created by its complaint against Judge President John Hlophe, who had allegedly lobbied for Zuma.
Such praise was necessary to buttress an institution under unprecedented attack. But there has been little consideration of the pressure Nicholson may be under, not from the ANC, but from supporters of an independent judiciary, who can conceive of only one outcome on Friday.
What if Nicholson strongly believes Zuma should stand trial, but after thorough consideration of this specific application, could only concluded that the NPA botched the new charges?
Such a decision would require extraordinary courage and independence of mind—the very qualities commentators remarked on when Nicholson was assigned to the case.
If he decides for Zuma, a great many people will feel that he is wrong in law and will have every right to say so, but they will have to resist the temptation to accuse him of caving in to the mob outside his courtroom.
Even if Nicholson does set the bussed-in protesters drinking and dancing, rather than burning and looting, Zuma may not be off the hook, although he would be greatly strengthened.
Both the NPA and Zuma’s legal team have agreed that any possible appeal against the judgement will not delay the application for a permanent stay. The NPA could invite Zuma to make representations, beginning the process for a third time.
It would be embarrassing and give him fresh ammunition in his application for a permanent stay of prosecution, but a court would once again have to be the final arbiter of the bigger question of whether he can get a fair trial.
If the process takes this course, Malema will probably adjust his rhetoric slightly, to distinguish between sober judges and drunken counter-revolutionaries, but surely more senior ANC figures would have very little basis to continue attacking the courts.
Anxious observers in the legal community, civil society, political parties and the citizenry, as well as those who believe Zuma is clearly unfit to be president, would no doubt be troubled by a judgement that seemed to let him off the hook, despite the evidence the NPA has amassed.
But a finding by Nicholson for Zuma will arguably hand defenders of independent courts the most powerful weapon possible: proof that the sword of justice cuts both ways.
Nic Dawes is the Mail & Guardian's editor-in-chief.
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