13 January 2009
editorial
Johannesburg — THE Supreme Court of Appeal's judgment in favour of the National Prosecuting Authority in the Jacob Zuma case comes as a relief in terms of maintaining the credibility of the judiciary, but is something of a nightmare politically.
High court Judge Chris Nicholson's earlier dismissal of the fraud, corruption and other charges faced by Zuma was problematic on many levels from a strictly legalistic point of view, even if it struck a chord with many South Africans, so it is encouraging that the appeal court judges were unanimous in their finding.
Potential obstacles to the prosecuting authority's ability to bring accused people before the courts in future have been avoided -- the stated primary purpose of the appeal; and Nicholson's tendency to opine on extraneous issues has been nipped in the bud before it set a precedent.
The charges against Zuma are too serious for him to be able to avoid them through a technicality; the court process must be allowed to run its course lest the message be sent that some in SA are more equal than others. At the same time, it is abundantly clear that (even if they are proven true) Zuma's alleged indiscretions were relatively minor in the greater scheme of things -- and just as it would be wrong for him to be denied the opportunity to prove his innocence, so it is unacceptable that so much to do with the odorous multibillion-rand arms deal, the ultimate source of his troubles, remains under wraps.
None of this means that Zuma cannot be elected president in a few months' time -- on the contrary, the ruling African National Congress (ANC) has made it clear that he remains their candidate regardless -- but it does mean he will either have to appeal to the Constitutional Court or try to reach a settlement with the prosecuting authority if he wants to avoid standing trial eventually.
The former must be a bit of a long shot, given that five appeal court judges were unanimous in their decision yesterday. And the trouble with the latter approach is that Zuma's lawyers are unlikely to accept any plea bargain agreement that might prevent him from becoming president, while in the wake of its appeal court triumph the prosecuting authority has little incentive to be overly generous. That raises the spectre of a sitting president being hauled before the courts to face fraud and corruption charges, which has both domestic and international implications that are too ghastly to contemplate.
The ANC has up to now largely resisted the temptation to meddle with the constitution, although it could have passed a law allowing a sitting president to postpone having to face criminal charges.
It now seems unlikely that the party will maintain the necessary two-thirds parliamentary majority in the coming election, so the point may be moot, but it will still be tempting for the executive to lean on the prosecuting authorities to toe the line, or for the party to "deploy" a cadre to the position of national director of public prosecutions to ensure that any negotiated settlement favours Zuma.
That would be in direct contradiction of one of several parts of Nicholson's judgment that remain praiseworthy despite the harsh words Deputy Judge President Louis Harms used to describe the rest of it. Nicholson may have "taken his eye off the ball" when he suggested, without evidence to back it up, that former president Thabo Mbeki had interfered in the Zuma case.
But his main point was that the prosecuting authority should be independent of political interference, and it is regrettable that the appeal court did not do more to back him up on that score.
Another Nicholson suggestion, again going beyond the scope of the matters he was supposed to be considering, was that the only way the endless rounds of legal battles arising from the arms deal would be resolved was for there to be a comprehensive judicial inquiry to establish, once and for all, whether allegations of massive corruption are correct, and if so who the main beneficiaries were.
If Zuma was a bit player in the arms deal drama -- as seems to be the case even if he is guilty of all the charges he now faces -- South Africans have a right to know who the main actors were.
And since the goal of the plea bargain process is ostensibly to obtain information from the small fry that could lead to a big fish being caught, perhaps that should be the starting point of any discussions that the prosecuting authority may have with Zuma's lawyers in future.
The appeal court decision is clearly a setback for both Zuma and the ANC, especially in the context of the breakaway by the Congress of the People (COPE), which was at least in part motivated by the ruling party's treatment of Mbeki.
The former president has not been vindicated -- the court merely pointed out that there was not enough evidence to accuse him of political interference -- but his ousting from office is looking more suspect than ever, which could play into COPE's hands come election time.
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