Mbeki strikes back

2008-09-22 00:00

With an urgent appeal to the Constitutional Court, President Thabo Mbeki has begun a new round in the fight against the Zuma camp in the ANC.

With this appeal, Mbeki wants to have set aside “remarks made in passing” by Judge Chris Nicholson that Mbeki, as head of state, meddled in Jacob Zuma’s prosecution.

Yesterday, experts on the Constitution said it was a clear indication that “he has not thrown in the towel” and “that anyone who thinks that the fight between Mbeki and Zuma is a thing of the past lives in a fool’s paradise”.

The passing remarks to which Mbeki refers in his affidavit to Chief Judge Pius Langa are those made by Nicholson earlier this month in his ruling in the KZN High Court.

Nicholson ruled that the National Prosecuting Authority (NPA) had not given Zuma the opportunity to make representations before deciding to charge him again for, among other things, fraud and corruption. At that stage, Zuma had just been elected ANC president in Mbeki’s place at Polokwane.

Mbeki says in the affidavit that instead of focusing on the issue at hand, Nicholson of his own accord went much further, saying in passing that Mbeki and the ministers serving with him had meddled in the NPA’s decision to prosecute Zuma.

Mbeki says these are serious allegations against him, not only in his personal capacity, but also as head of state, and that they resulted in him having to resign. Nicholson had no right to make remarks of this nature without giving Mbeki and the relevant ministers the opportunity to state their case in court.

Mbeki argues that this has affected his Constitutional right to human dignity and access to the courts. He argues that he should be given direct access to the Constitutional Court in order to have the “false” allegations set aside.

As Nicholson’s remarks were not court orders, an appeal cannot be lodged against them in a Court of Appeal. Only the Constitutional Court now has the power to intervene, Mbeki says.

Professor Marinus Wiechers, a former law professor at Unisa and an expert on the Constitution, thinks Mbeki has a “very strong chance” of success. “I was astounded when I heard Judge Nicholson make his statements on Mbeki and the executive. That was not the legal issue he was required to rule on. I thought he should have let sleeping dogs lie.

“One thing is certain: Mbeki’s appeal is proving wrong all those who thought he had gone quietly, as Sunday night’s dignified speech on TV could have indicated. On the contrary, he is clearly ready for battle…”

Professor Tom Coetzee, a former law professor at North West University’s Potchefstroom campus, said he considered Nicholson’s statements on political meddling in the Zuma prosecution as “neither relevant, nor fair”.

“I was astonished. The Constitutional Court’s ruling will be groundbreaking. Mbeki is taking the right route. No one should underestimate his intelligence.”

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