President is above the law, Zuma’s legal team tells high court

2009-09-18 00:00

CAPE TOWN — President Jacob Zuma is above the law — “like his American counterpart” — and may not be criminally charged while serving as head of state.

Such prosecution could lead to the undermining of the country’s entire constitutional framework, as it would affect the principle of separation of powers.

This is the argument put forward in court papers submitted to the high court in Pretoria by Zuma’s legal team. The papers were submitted in response to an application by the DA for a review of the decision by the National Director of Public Prosecutions (NDPP) in April this year not to prosecute Zuma.

DA leader Helen Zille reacted sharply, saying the extent of Zuma’s threat to the Constitution is now clear. She said the court documents contain “blatant untruths”. His arguments are obscure and undermine the Constitution, she said.

Legal experts have described his arguments as “absolute nonsense”, “false” and “dangerous”.

Professor Pierre de Vos of the University of Cape Town, constitutional expert Professor Marinus Wiechers, and advocate Paul Hoffman SC of the Institute for Accountability in Southern Africa all say there is nothing anywhere in the Constitution that makes a head of state immune to prosecution.

Zuma declined to reply to questions on the matter during a media conference at Tuynhuys yesterday, saying that he is leaving it in the hands of his legal team. He did say, however, that if he was summoned to appear in court he would do so, as “no one is above the law”.

But the affidavit submitted on his behalf by his lawyer, Michael Hulley, paints a different picture. In it, Zuma argues that it is not in the public interest for him to be prosecuted now that he is already serving as president.

Zuma is also convinced that the DA has no grounds for becoming involved in a legal case against him. The DA is clearly “pursuing its own political agenda”, and its approach has always been to criticise the government, the ANC and ANC politicians.

Moreover, it would amount to interference by the judiciary in the executive, one of the three independent branches of government.

According to Wiechers, De Vos and Hoffman, this argument is invalid.

The right of one of the branches of government to review one of the others is precisely one of the factors that strengthens the independence of each; it amounts to having checks and balances.

They say the strategy appears to be to ensure that the matter will eventually go to the Constitutional Court. Zuma will soon be appointing four judges to that court, as well as a new chief justice.

Zille said her party will respond fully to Zuma’s court papers, adding that “the president’s personal charm … is a convenient smokescreen behind which the assault on the Constitution continues”.

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