Should we dig further?

2008-09-18 00:00

For the last year or so South Africa, and particularly the majority African National Congress (ANC), has been in a state of political turmoil. The recent judgment in the Jacob Zuma case by Judge Chris Nicholson has clarified some matters but also complicated the situation further.

It is difficult to know quite what will happen next. The ANC has to decide how it will proceed, particularly whether it will seek to unseat Thabo Mbeki immediately, and there may be formal responses from Mbeki, the National Prosecuting Authority (NPA), and the others with whom Nicholson has found fault. One is left to consider, as many other commentators have done, some of the implications of the present situation.

It was undoubtedly very good for the judiciary and for our democracy as a whole that Nicholson’s judgment was highlighted in the way that it was: the very full television coverage, the crowds in the streets and the words of the judge beamed outside the court. This crucial judgment was made momentous, thus emphasising for all to see and hear the importance and the power of a fearlessly independent judiciary. There is some irony in this, however, as the drama of the occasion had to some degree been built up by people whose aim was to pay homage not to the judiciary but to Zuma, and some of whom had recently treated the judges with outrageous disrespect.

Leaving aside the important technical point upon which Nicholson made his pronouncement, the main political content of his address concerned the interference in legal processes by the president and the cabinet. In stating his findings in this matter Nicholson has struck an important blow for constitutional democracy. One must at the same time note, however, that it is a pity that he didn’t find a way of mentioning and condemning the other current threat to correct legal processes, that coming up noisily from the streets. One must remember, too, that Nicholson’s judgment, impressive and resonant as it is, might still be challenged in court.

Nicholson stressed that he was deciding on the validity of the way in which Zuma had been recharged, not on his innocence or guilt. There was no legal reason, he said, why Zuma should not be charged once again. But the NPA, despite the sharp criticism it has received, has now applied for leave to appeal Nicholson’s judgment in a case that has dragged on for seven years and collapsed twice. This is bad news for Zuma, of course, but it may mean that the matter may still be decided in court. And that would be good news for South Africa and for its reputation within the international community.

But it isn’t only over Zuma’s head that a cloud is likely to hang. The charging of Zuma seems to have been selective (this was indeed suggested by Nicholson), and the judge proposed that a commission of inquiry should be appointed in an attempt to put to rest once and for all the arms deal and all the scandal associated with it. This suggestion has been seized on, as one would expect, by the opposition parties, which have been unhappy from the first about the way in which allegations and suspicions in relation to the arms deal were handled.

Ideally speaking, no doubt, such an inquiry should be held. But I doubt if it will be. The most obvious reason for this, alas, is that at least some of the people who would be responsible for appointing the in-quiry would be precisely those who would be likely to be investigated. Politicians have a distinct habit of not wishing to incriminate themselves. But I think it could perhaps be argued that such a commission might not in practice be wholly a good idea.

I have been told by politicians from other countries that arms deals are very frequently messy and dubious affairs, that it is extremely difficult to get to the bottom of them and that unfortunately there is something to be said for not asking too many questions about them. The chances are that an inquiry of the kind envisaged might drag on for some time, thus lowering public morale and distracting the nation from its most urgent tasks. And it is possible that after a rather confused and inconclusive inquiry the international reputation of the country would be lower than it had been before.

Whatever happens or doesn’t happen, there is a great deal in all this that is very unsatisfactory. Maybe we should all just press on as creatively as we can, learning if we can from our mistakes. But will a Zuma presidency take to heart the lessons that Nicholson has taught?

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