What independence means

2008-09-17 00:00

Even as Jacob Zuma’s supporters exult at Judge Chris Nicholson’s judgment which clears the way for their man to become the next South African president, they should have pause to consider the further implications of that judgment on Zuma’s presidency and future administration.

For, while the judgment declared the decision to charge Zuma un-lawful, it did not vindicate him. The judge made it clear that his finding was only on a procedural point and “has nothing to do with the guilt or otherwise of the applicant”, meaning Zuma.

The procedural point had to do only with the fact that Zuma should have been allowed to make representations to the National Prosecuting Authority (NPA) before it decided to prosecute him after initially saying that it would not do so. The judge stressed that if the NPA rectified this defect it could still proceed with the charges against Zuma. But given the shift in public perceptions of the case following the judgment, it is doubtful that it will do so.

That means that if nothing is done to clear the air, Zuma will become president and have to govern under what the judge called “an ever-present cloud of suspicion and scandal”.

Zuma has been accused of taking 783 bribes totalling R4,2-million over a period of 10 years between 1995 and 2005. A dark cloud indeed. Moreover, the judge was at pains to stress the seriousness of corruption. It was, he said, a cancer eating at our body politic which, if unchecked, could destroy a country.

He noted, too, that the more senior the status of the person involved, the more serious the act of corruption — so that courts should regard the holding of high office as an aggravating circumstance.

Quoting one of the most famous of United States Supreme Court judges, Justice Louis Brandeis, he said: “Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

It follows, therefore, that it will be most unsatisfactory and contrary to the national interest if Zuma becomes president of the country without clearing the air about those allegations against him. And if there is to be no trial, that can only be done through a commission of inquiry.

Nor is it only Zuma who needs to have his name cleared if he is innocent. Corruption allegations have also been made against President Thabo Mbeki and other members of the government.

Nicholson said as much in his judgment. Noting that President Mbeki had appointed a commission to investigate the much lesser issue of allegations that former NPA national director Bulelani Ngcuka had been an apartheid-era spy, he said: “It seems to me so much more important to appoint a commission to thoroughly investigate whether there is truth in the allegations of widespread corruption, and if there is not, to clear the name of President Mbeki and those others unjustly accused.”

Indeed it is. But only the president can appoint such a commission, which raises the question of whether either Mbeki or Zuma, when he becomes president, will have the courage to do so. If not, that will further darken the cloud of suspicion hanging over them.

Another aspect of Nicholson’s judgment with far-reaching implications was his finding that there had been political interference in the independence of the prosecuting authority — which he noted was a criminal offence subject to a maximum fine of 10 years imprisonment.

This was a curious side issue to the main case and would not have featured in the judgment had the prosecution not introduced it in what it may now rue as a tactical blunder. All the court was required to decide was whether Zuma was entitled to make representations before the decision to prosecute him was taken.

But the prosecution was stung by allegations in Zuma’s affidavits that there had been political influence in the decision to prosecute. It described these as “scandalous, vexatious and irrelevant” and asked the court to order that they be struck from the papers.

That compelled the judge to apply his mind to the allegations and decide whether they were indeed vexatious and irrelevant. He had to examine the whole question of whether there had been political interference, which otherwise he would not have had to do.

This also brought up an issue close to the judge’s heart. While working for the Legal Resources Centre during the apartheid years, Nicholson published a study of the role of attorneys-general under the apartheid system.

He found that the executive had interfered heavily in their independence, directing attorneys-general to prosecute the government’s political opponents in a range of cases from the Treason Trial of the sixties to many under the Terrorism Act.

This obviously sensitised him to the seriousness of such interference and he expressed alarm that it was now occurring in the new order.

He cited as an example how Ngcuka appeared at a press conference on the Zuma case together with the then justice minister, Penuel Maduna, and thanked the minister publicly for his help and “political leadership”.

“Put at its very lowest,” he said, “Mr Maduna seems to have played a not insignificant role in planning the strategy”, in the Zuma case.

Nicholson described the decision not to prosecute Zuma together with his financial manager, Schabir Shaik, as “bizarre”. He said it had “brought the justice system into disrepute”. He also referred to President Mbeki’s suspension of Ngcuka’s successor, Vusi Pikoli, on the grounds that there was a breakdown in his relationship with the Minister of Justice, Brigitte Mabandla.

“There should be no relationship with the minister of justice,” the judge said, “certainly insofar as his [her] decisions to prosecute or not to prosecute anybody. The suspension of the national director was a most ominous move that struck at the core of a crucial state institution.”

All this led Nicholson to conclude that “the baleful political influence” of the past was continuing in the new South Africa. “I am satisfied that political meddling cannot be excluded [in the Zuma case] and I am of the judgment that it existed to a sufficiently egregious degree that it justified inclusion in the papers.”

The implications of this finding reach well beyond the Zuma case, for the government clearly has a different view of the relationship between the chief prosecutor of the NPA and the minister of justice.

The clash is highlighted by President Mbeki’s appointment of a commission under former parliamentary Speaker Frene Ginwala to inquire into Pikoli’s suspension and determine whether he is fit to hold office. Now, a year later, the commission finds it will be bound by Nicholson’s judgment.

Nor do the different notions of independence stop with the justice system. The ANC’s practice of “deploying” members to key positions in state institutions and the civil service is clearly aimed at politicising these institutions and conflicts with the notion of an apolitical civil service that remains in position to serve different governments as they come and go.

These are differences that go to the heart of defining our democracy.

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