/ 21 September 2008

Blurring law and politics

The success of the Jacob Zuma application took many by surprise. To be fair, the lengthy and reasoned judgement is hardly without legal controversy. Its central holding turns on the following constitutional provision:

“[The National Director Public Prosecutions] may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director Public Prosecutions (NDPP), from the following:

(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director ­considers to be relevant.”

The NDPP argued that this ­provision applies only where a local director of prosecutions (DPP) decides to prosecute, in which case the national director may institute a review, during which the accused is entitled to make representations.

Nicholson disagreed. If the section applied only to decisions taken by the DPP then the word “decision” as used in the section would have read “a decision of the DPP”. Once the section was interpreted to mean any decision, including a decision of the NDPP itself, the way was open to examine the decision to recharge Zuma after the Polokwane conference. Nicholson then embarked on a lengthy examination of the events leading up to the 2007 decision to prosecute.

A key moment was the statement by the then NDPP Bulelani Ngcuka at the now notorious press conference in 2003: “However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the Act, we are duty bound to consider representations.” The judge rather generously interpreted this statement as an offer to Zuma.

Then came the following announcement : “After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, while there is a prima facie case of corruption against the deputy president, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case.”

The judge was confronted with a problem concerning this statement: here was an NDPP refusing to charge Zuma, a decision that, at face value, appeared to be to the latter’s advantage and thus against a conspiracy theory. But the judge reasoned that, once Schabir Shaik was charged with bribery, Zuma would be tainted as the second party to this relationship and would have to sit on the sidelines without the benefit of mounting his own defence. Secondly, the then minister of justice, Penuell Maduna, sat next to Ngcuka at the press conference and was duly thanked for all his support — a clear indication of political interference in the proposed strategy.

When Zuma later asked to make representations to the NDPP before he made his decision, this offer was refused.

The judge found that the political interference with the NDPP continued long after the Maduna era, as was evident in the manner in which the present Minister of Justice, Brigitte Mabandla, and President Thabo Mbeki dealt with Ngcuka’s successor Vusi Pikoli over the prosecution of Jackie Selebi.

On this basis, the judge concluded in favour of Zuma, as follows: “It seems clear that the applicant was entitled to place great reliance and trust in what Mr Ngcuka said in inviting representations at the press conference. Because of the political meddling I am of the view that the respondent did not maintain his independence and was not in a proper position to carry out his duties to honour the promise to hear representations or to respond properly to the request to receive representations … I am of the view that the applicant had a legitimate expectation that his representations be heard by Mr Pikoli in the first instance and Mr Mpshe especially after the promise at the press conference and the letter requesting an opportunity to make such ­representations.”

The judgement is hardly immune from legal criticism, whether on the interpretation of the applicable constitutional provision or the wide-ranging inferences drawn essentially from newspaper reports. But it holds at least three huge gains. It, in all probability, puts an end to the whole sorry saga of this prosecution and will afford the country room to rebuild the legitimacy of institutions scarred, both by the interference of the Mbeki government and the equally thuggish attacks (particularly on the judiciary) by Zuma supporters.

In addition, it asserts the independence of the judiciary and its ability to deal with legal controversies.

Finally, it exposes in a court what, ironically, many knew already: that there is a need to clean government stables if we are to recover key independent institutions.

But, by being so expansive in its findings, the judgement has arguably blurred the distinction between law and politics far further than may have been necessary to find against the NDPP. The clear reasoning underpinning the judgement notwithstanding, will this outcome not encourage the Julius Malemas of this country to feel that, if they can mount a sustained populist campaign, the courts will bend to their will?

That, of course, was not Nicholson’s problem. He called the case with the judicial integrity for which he is well known. But it remains the problem of we the citizens, the ultimate custodians of the long-term survival of constitutional democracy.