A matter of the law

2008-06-25 00:00

In papers filed in the Pietermaritzburg High Court on Monday, and in yet another attempt to evade the “day in court” he once said he wanted, Jacob Zuma accused the National Prosecuting Authority (NPA) of having a “grim resolve” to prosecute him “irrespective of the facts and circumstances” and so prevent him from becoming president. Zuma was applying to have the NPA’s decisions to prosecute him in 2005 and 2007 declared invalid and unconstitutional, with the application to be heard on August 4, the designated starting date for his trial (with Thint) on charges of fraud, corruption, racketeering, tax evasion and money laundering. If the application fails, Zuma, who insists that his prosecution is driven by political motives, intends to make a second application for a permanent stay of prosecution.

In his quest for power, Zuma seems to have forgotten a number of the principles vital to any healthy democracy. The first is the separation of powers, with the judiciary independent of, and uninfluenced by, the executive. The second concerns the nature of the law and the legal process, and the fact that “the letter of the law” is no empty phrase: the law has its own clearly defined criteria, and cases may be won or lost on technicalities relating to proof, or otherwise, based on evidence presented to the judiciary. The third is the fact that in a true democracy nothing may be allowed to get in the way of the law — including the status of those brought before it: no one, not even the exalted president-in-waiting, is above the law.

What Zuma needs to realise, too, is that in a genuine democracy, those holding high public office are expected to be above reproach. Which means that the loftier the individual, the more intense must be the scrutiny upon him or her. This can be seen at work in mature democracies where the financial and other peccadilloes of senior politicians are constantly being ferreted out. Also, now that the identities of the U.S. presidential candidates are known, political opponents have begun intense investigation of their backgrounds, hoping to find something — anything — to besmirch the squeaky-clean image each is projecting. Of course there is a political element to the scrutiny of Zuma: that’s as it should be.

Finally, for Zuma to decry or feel aggrieved about the “grim resolve” of the NPA is a serious mistake. That grim resolve is what democrats require of their judicial system — a vigorous determination to seek the full facts of any case and to be seen publicly to have passed fair judgment on the basis of those facts. And one fact Zuma cannot argue away is that his former business partner, Schabir Shaik, was found guilty of corrupt activity involving him —an impeccable legal judgment later endorsed by the Constitutional Court.

The Zuma case will be a severe test of the validity and strength of South Africa’s democracy.

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