Zuma fears having his day in court

Loyalists: Supporters of then deputy president Jacob Zuma outside the Pietermaritzburg high court on August 5, 2008, when he was on trial for corruption. The charges were later dropped. (Rogan Ward)

Loyalists: Supporters of then deputy president Jacob Zuma outside the Pietermaritzburg high court on August 5, 2008, when he was on trial for corruption. The charges were later dropped. (Rogan Ward)

Is it not puzzling that an innocent man would try for many years to prevent being proven not guilty? President Jacob Zuma’s continued desperation never to have his day in court to face corruption charges is simply bizarre. This past week, the president, as well as the National Prosecuting Authority (NPA), have tried anew to prevent Zuma being proven not guilty.

The latest legal arguments are not new and, frankly, should be thrown out by the Supreme Court of Appeal, whose time is being wasted by having to wade through settled arguments.

Essentially, between them, the NPA and Zuma are rerunning two old claims. First, they maintain that if there was a political motive behind the case against Zuma then the NPA can, as a matter of legal rationality, drop charges on the basis of wanting to safeguard the integrity of the legal system.

Second, they claim that even if the first argument sucks, it is solely up to the NPA whether to go ahead with prosecuting a case, regardless of whether the reasons behind the decision suck or not.

These arguments are old and bad. The second argument is obviously unacceptable because any exercise of public power is subject to judicial review, including a rationality test. The autonomy of the NPA is not fatally weakened just because that autonomy is constrained by the requirement that it be exercised lawfully.

Essentially, the NPA is pretending here that only the unfettered exercise of public power can be said to be truly an expression of independence or autonomy. You do not need a law or philosophy degree to see how patently absurd — and dangerous — that claim is.

The NPA routinely exercises discretion about which cases to pursue without interference from the courts. It does not follow that any legal testing of a particular exercise of discretion undermines the general importance of allowing prosecutors to have autonomy.

This is simply a dangerous request from the NPA not to be held accountable for how it exercises its discretion. That makes no constitutional sense. The NPA, like all of us, is subject to the demands of the principle of constitutional supremacy from which the rationality test is ultimately derived, and mercifully so, as a bulwark against the abuse of public power. 

The first argument has been dealt with in our law already. Legal theory students may debate, for fun, whether or not a wicked prosecutorial motive undermines the integrity of our legal system. In some countries that is, indeed, part of the set of considerations that prosecutors may mull over when deciding whether or not to continue pursuing a case. Our law differs.

Our courts have been very clear that a bad motive behind a winnable case does not constitute rational grounds to drop the case. We know that the NPA always maintained it had good prospects in court of having Zuma found guilty of corruption. The NPA has, furthermore, never doubted that it can guarantee Zuma’s right to a fair trial. This is especially true in the absence of a jury system where public opinion could sway a jury of peers, combined with the appeals system built into the judicial processes.

So, frankly, the NPA and Zuma are dragging us all back to well-rehearsed law. It does not matter whether Zuma’s political opponents desperately conspired to have him charged with corruption. Assuming Zuma is right about that conspiracy, our law does not care for that political malice. It is politically sad. It is, I am afraid, legally irrelevant. It matters only that Zuma’s right to a fair trial is guaranteed, and that the NPA has judged itself to have good prospects of winning the case against Zuma.

Two things should disturb us about this whole embarrassing saga.

The first disturbance here is the NPA appealing the matter. Clearly, the NPA is not trustworthy or impartial. How can it be? With someone as incompetent as Shaun Abrahams around, you have to be very naive to think the NPA does its work without fear or favour.

It is the same NPA that wanted to hastily bring charges against a minister who does not exactly have the blessing of Zuma or the Guptas, only for it to eat humble pie when it was blatantly obvious it had no case.

The second disturbance is the insistence of the country’s first citizens on avoiding being tried in a court of law. One has to wonder: What exactly is eating Zuma? Could it be that a guilty conscience and a fear of the rule of law are behind the tiresome and desperate stalling tactics?

I certainly suspect most of us know the answer. The Guptas’ pawn is scared of jail. 

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