'Mbeki breached the Constitution'

2008-09-12 15:25

Cape Town - Pietermaritzburg High Court Judge Chris Nicholson's ruling that the decision to prosecute ANC president Jacob Zuma on corruption and other charges was unlawful, is a stinging slap in the face of President Thabo Mbeki and his Cabinet, according to constitutional law expert, Professor Pierre de Vos.

Writing in his blog, constitutionallyspeaking.co.za on Friday, De Vos also pointed out that a court had for the first time confirmed what many people had suspected - "that Mbeki and his Cabinet have interfered in the decision to prosecute Zuma to gain political advantage".

"The constitutionally guaranteed independence of the National Prosecuting Authority (NPA) has been fatally breached in the process," he added.

Unconstitutional

Nicholson confirmed in his judgment that the NPA should act without fear favour or prejudice when deciding on whether to prosecute and individual, and it failed to do so in the case of Zuma.

"He seemed to suggest that the NPA Act, which allows for the National Director to be fired by the President, may well be unconstitutional and that the president has abused his power and breached the Constitution by acquiescing in the undermining of the independence of the NPA.

"President Mbeki has in effect been found to have breached the Constitution," De Vos, a professor at the University of the Western Cape, said.

He added that in an ordinary democracy, the president would find it difficult to survive such a rebuke from a court, and Mbeki's position "has really now become untenable, and if he had any honour he would resign".

The judgment is also likely to rekindle calls by members of the ANC and its alliance partners for Mbeki to fired.

'Today's judgment will help South Africa'

Meanwhile, Zuma told supporters outside the court that the judgment "is a victory for the judiciary, it is a victory for our democracy, it is a victory for our justice system", Sapa reported.

"My view is, today's judgment will help South Africa," Zuma said.

He also said Nicholson confirmed his belief that there was a political conspiracy against him. "The judge said... this is a political wrangle."

Zuma not in the clear

De Vos pointed out that Zuma is not in the clear, as the judgment made no comment on the advisability of the NPA's decision to re-charge Zuma.

"Even if Zuma is not re-charged he will obviously still have an ethical (if not a legal) cloud hanging over his head and at the very least he will have to try and show to the nation why he would not have been found guilty had he been charged. Otherwise most of us will continue to wonder whether he might not have been corrupt after all and might not have given an opening to President Mbeki to abuse the system to get rid of him."

Judge Nicholson's decision strengthens both Zuma's political and legal hand, and he is now favourite to become the country's next president, De Vos wrote.

"Politically, his claim of a political conspiracy has in effect been vindicated by a court... Legally the judgment seem to strengthen the argument that he would not be able to get a fair trial because of the political interference in the case (although this would still be a difficult argument to sell to a court)."

Reaction from opposition parties

However, opposition parties pointed out that the judgment was not about whether Zuma was guilty or innocent.

"We are still no closer to knowing whether Zuma is innocent or guilty of the corruption charges brought against him," said Democratic Alliance leader Helen Zille.

"Zuma remains a suspect with a cloud hanging over his head," said United Democratic Movement leader Bantu Holomisa.

Independent Democrats leader Patricia de Lille said Zuma should still "face the music and clear his name".

She added that the judgment "clearly indicates blatant political interference by President Mbeki and Cabinet members in the NPA process and the timing of charging Zuma".

"The ID views this as a shocking indictment on Mbeki and his Cabinet and lends further weight to the IDs call for a vote of no confidence in the President and the Cabinet, who must take collective responsibility for this entire debacle," De Lille said. - News24/Sapa

- News24