Listening to Judge Nicholson

Let us be honest about this: many, many of us, believing that Jacob Zuma is a demonstrably inappropriate person to run the country and, knowing that the available political processes aren’t likely to stop him, want the courts to spare us from him.

The more credible version of this thinking goes that the interests of justice would be served by the rigorous trial of a powerful man against whom evidence of corruption is stacked up thousands of pages high, and that South Africa needs to be shown that such men are not rewarded with high office. It is as hard to argue with that proposition as it is to agree with the blunter version: that he must simply be got rid of and the courts are the only remaining instrument that can achieve it.

But all of us have to admit that we hoped the criminal justice system would achieve what other organs of our young and flawed democracy cannot—to save the country from its own worst tendencies.

Judge Chris Nicholson clearly did not want to play that game, or at least not on the terms that seemed available in the heated months leading up to last week’s judgement.

It remains to be seen whether his rulings on the obligation of the National Prosecuting Authority to hear representations from Zuma, and on whether to strike out of the court record contending views of the “political meddling” surrounding the case, survive possible appeal.
Certainly there are many jurists who think he was wrong and more who think he took massive risks ­pushing as deep as he did into political terrain.

They may be right, but in the all-too-clear light of the morning after the judgement, with Zuma magnanimously declining to “beat a dead snake”, we are in danger of ignoring its central thrust—and of forgetting some much larger issues.

We expect a good deal of judges, not least because our dominant party-political culture and closed-list proportional-representation system limit the efficacy of the usual checks on state power. The ruling party faces no real threat of electoral defeat at national level and internal dissent seldom finds an outlet in the legislative process because MPs owe their jobs to the party brass.

That combination of factors is one reason why pressure that might otherwise be taken up by opposition parties, or by more effective parliamentary factions within the ANC, devolves upon the judiciary. It is also one of the reasons that a certain amount of judicial “activism” is inevitable.

Whether they are mandating the provision of Nevirapine to HIV-positive pregnant women, as the Constitutional Court has, or upholding and then striking down medicine pricing regulations, as the Cape High Court and Supreme Court of Appeal respectively have, or considering the charges against Zuma, our courts are in and of the political world.

The doctrine of separation of powers is not a doctrine of separate realities. Put differently, judges work not at some mystical remove from the hurly burly, but at a relatively still point in its centre.

The question is not whether they “involve themselves in politics”, but whether they are insulated enough from its power plays to make legally correct decisions that nevertheless have political consequences—not least for judges themselves.

One way to deal with the immense complexities of this environment is to stick to the technicalities and let politicians figure out what to do with the results. It is certainly the safer approach. The alternative is to seize history by the scruff of the neck, which is clearly what Nicholson decided to do. Perhaps, as he suggests in the judgement, he was compelled by the prosecution’s application to strike the Zuma team’s conspiracy claims from the record, and by the defence team’s counter-application.

“Both applications include prayers for punitive costs on the attorney and client scale. At no stage did either party abandon these applications and the court is therefore compelled to deal with them. It is of course trite that in order to rule on what is irrelevant, scandalous, or vexatious, the court has to look at the merits and what is relevant to the live issues therein,” Nicholson pointed out, adding elsewhere, although perhaps not quite loudly enough:

“I am not saying the political meddling is a sufficient ground on its own to secure the relief at all. That was not an issue as such in this application. What I mean is that it was legitimate of [Zuma] to place it before the court to evaluate his right to make representations.”

Perhaps, too, he felt he had no alternative—he was already at the centre of the most politicised trial in post-apartheid history and had an opportunity to make a powerful assertion of prosecutorial and judicial independence, even in reaching a ruling favourable to those most willing to undermine the courts.

Either way Nicholson has neither provided a pat solution for the Zuma problem nor necessarily made life easier either for his colleagues at the Supreme Court of Appeal and the Constitutional Court, who will certainly come under renewed attack if this judgement goes to them for review.

That should not stop us from listening more carefully than many have in the past week to the real import of the judgement: it was Thabo Mbeki’s mock-funeral that was conducted outside the courtroom, but inside it Nicholson read out an obituary for a political culture in which the watching worthies of the national working committee and the tripartite alliance are just as culpable: the casual, consistent and increasingly unremarkable assertion of hegemony by the ruling party over all the institutions of the state.

Nicholson was referring to Mbeki’s sacking of Zuma when he quoted Thucydides to the effect that “The powerful exact what they can, the weak grant what they must.” He may have had in mind, too, Mbeki’s reputation as an intriguer when he cited that master of the backroom arts, Cardinal Richelieu: “in matters of state the weakest are always wrong”.

The rule of law, he added, was there to ensure that nowadays “power and wealth are not deciding factors in the courts”.

In 2005, clearly, Mbeki was strong and Zuma weak. The shoe is now firmly on the other foot, and it is this judgement that is going to be used to be doing a lot of the exacting. But that is perhaps the least important outcome.

The judgement (PDF)

Read Judge Chris Nicholson’s full judgement

“Amid the clash of arms the laws are not silent,” Nicholson reminds us, but Mbeki-versus-Zuma is less use now than it ever was as a rubric for understanding the real battle in which he so clearly sought to make an intervention. Mbeki really is an irrelevance. Those in the ANC and the country more broadly who believe in a more open, better ­governed, more prosperous and more equal society will have to find alternatives to rally to, but they should have woken up to that a long time ago.

The real clash is a more fundamental one between power and constitutional limits on its exercise. At present it is Zuma’s ANC that has power. Democratic institutions—crucially the courts—are no real obstacle, we are to understand, to angry MK veterans and the bare-arsed bravehearts of the youth brigade. Nothing has changed in that assessment because of a week of emollient comments about sober judges.

If the rule of law here served to limit an abuse of power by the once-strong Mbeki, it will have to do so over and over again in the coming years. For Zuma’s supporters this message seems to have been drowned out by the victory cries, and for his critics by the roaring of blood in their ears, but it really is the only message that matters.

Nic Dawes

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