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Judicial integrity at stake in ConCourt, Zuma showdown

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Former president Jacob Zuma attends the uMkhonto weSizwe Party (MKP) greater Johannesburg rally at the Alexandra Stadium in February. The missteps by the judiciary, unfortunate and tragic as they are, should disabuse us of the notion that it is comprised of individuals who are all-knowing, and who will always act in the interests of justice, says the writer. – Picture: Timothy Bernard / Independent Newspapers

By Sipho Seepe

The continuing legal wrangle between the IEC and the uMkhonto weSizwe Party (MKP) flows directly from the unconstitutional decision of the apex court to sentence former president Jacob Zuma to jail without the benefit of a trial.

This conundrum was somehow self-created. In her dissenting opinion, Justice Leona Theron captures the judicial misstep as follows. “The main judgment, in my view, allows our law of contempt to be hijacked by the peculiar, and indeed, frustrating, facts of this case… the main judgment develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake law that is not only bad; but also, unconstitutional.”

The country has since paid dearly for this lack of judicial discernment. The social unrest arising out of this misjudgement caused a sense of outrage. It didn’t take long before this anger found expression in acts of vandalism. More than 200 malls were gutted. The human cost was staggering. And 350 people lost their lives. This remains the most traumatic episode of post-1994. In the fullness of time, someone must account for the lives lost. Failure to do so will feed the roots of racial supremacy that black lives don’t matter.

Detention without trial ranks as one of the most draconian, most evil, and most repressive measures that apartheid unleashed on political activists. The fact that the Constitutional Court gave this most evil measure judicial imprimatur should send a chill down our spines. As it was under apartheid, none of us are safe. Evil is evil. It does not matter how you want to dress it up.

This seeming lack of discernment by our esteemed judges should not come as a surprise.

In his book, The Pedagogy of the Oppressed, Brazilian educator Paulo Freire warned. “But almost always …. the oppressed, instead of striving for liberation, tend themselves to become oppressors, or sub-oppressors. The very structure of their thought has been conditioned by the contradictions of the concrete, existential situation by which they were shaped …. This phenomenon derives from the fact that the oppressed, at a certain moment of their existential experience, adopt an attitude of “adhesion to the oppressor”.

The abuse of power is not the preserve of any group. It knows no colour, creed, or class. The quote, “power tends to corrupt and absolute power corrupts absolutely”, purportedly made famous by Lord Acton is a reminder of the perennial danger of entrusting anyone or any group with enormous powers.

History is replete with instances where untold miseries were visited on the powerless under the pretext of serving a higher purpose. We should know better. Even the brutal acts of colonialism were justified as serving a higher purpose. This prompted Aime Cesaire to argue that the motives of the colonisers were “neither evangelisation, nor a philanthropic enterprise, nor a desire to push back the frontiers of ignorance and tyranny, nor a project undertaken for the greater glory of God, nor an attempt to extend the rule of law”.

The re-introduction of “detention without trial”, one of the most draconian measures of the evil system of apartheid, by the Constitutional Court, is the most recent example of entrusting too much power to any group – however well intended this might be.

To make an irrevocable break with the past, the Constitution is unmistakenly clear in its treatment of the right to freedom.

Section 12 (1) (b): “Everyone has the right to freedom and security of the person, which includes not to be detained without trial.”

Section 35 (2) (d): “Everyone who is detained, including every sentenced prisoner, has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.”

Section 37 (6) (g): “The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.”

Finally, section 47 (1) (e) which is at the centre of the controversy is ambiguously clear and leaves no room for second-guessing. It states that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired”.

The above sections are intended to restrain abuses of power by anyone, including the judiciary itself. Even a cursory reading of the above provisions reveals that the sentencing of Zuma by the Constitutional Court effectively amounts to him being deprived of all the above constitutional rights. In this regard, the Constitutional Court has become a law unto itself. It is this abuse of power that the dissenting minority judgment by Justice Theron and Jafta sought to highlight and discourage. Their words of admonition, which are likely to reverberate throughout the coming years, are worth re-stating.

Justice Jafta wrote. “The problem in this matter is not whether Mr Zuma may be convicted and be punished for contempt of court. Instead, it is whether the motion followed in convicting and sentencing him to imprisonment is consistent with the Constitution. In other words, whether the procedure amounts to a trial contemplated in the Constitution. On the interpretation assigned to section 12(1)(b) here, the motion procedure does not constitute a trial and as a result, the detention is not consistent with the right not to be detained without a trial.”

For her part, Justice Theron had this to say: “By depriving contemnors of their liberty without a criminal trial, summary contempt proceedings, even when brought on notice of motion, limit the fundamental right to freedom of the person protected by section 12 and the right to a fair trial protected by section 35(3) of the Constitution.”

The missteps by the judiciary, unfortunate and tragic as they are, should disabuse us of the notion that it is comprised of individuals who are all-knowing, and who will always act in the interests of justice.

In a matter between the IEC and the MK Party in which the IEC relied on section 47(1)(e) to disqualify the former Mr Zuma’s eligibility to become a public representative, the Electoral Court held that “the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates. The Commission erred therefore to uphold an objection to Mr Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of the National Assembly.”

This matter has now been escalated to the very Constitutional Court that sentenced the former president to prison without the benefit of a trial. Having used the most vituperative language in sentencing Zuma, it would be asking too much for the MKP to expect that the very same judges would approach the case with an open mind. The justices of the Constitutional Court should take a leaf out of the book of their colleague Judge Dhaya Pillay who serves as a member of the IEC.

Judge Pillay recused herself from the Commission’s decision on the objections involving the former president because she was an acting Judge at the Constitutional Court when that Court convicted Zuma of contempt of court.

Judge Piet Koen of the Pietermaritzburg High Court recused himself from the case for similar reasons. Having ruled previously against Zuma in a matter involving Billy Downer, the state prosecutor in a case involving Zuma, Judge Koen argued that “Mr Zuma will be reasonably justified to feel aggrieved that a decision was made favouring the arguments of Mr Downer dictated or at least very strongly influenced by my previous findings to be consistent with my previous findings. And the views I expressed… I have to recuse myself from the trial. It is what a sound administration of justice, the requirements of the constitution, and my conscience dictate – the integrity of the judicial process must be protected against any reasonable taint of suspicion.” Amen to that.

Koen is not alone. Judge Colin Lamont recused himself from the class action case involving 329 wounded and arrested mineworkers from the Marikana massacre. This was after he disclosed that he had held shares with the company involved in a case. All that is required is a reasonable apprehension of bias by the litigants.

This raises the important question of whether the judges of the Constitutional Court who presided over the sentencing of Zuma would have the same level of judicial discernment.

If Judge Koen is to be believed, recusal would be consistent with the sound administration of justice and the requirements of the Constitution. Indeed, the integrity of the judicial process is at stake. What their consciences dictate would be revealing.

Thirty years into our democracy, all arms of the state have unwittingly conspired to sustain the geopolitical imagination of white supremacy.

The Constitutional Court has an opportunity to redeem itself or to consign its importance to the hall of the ignoble.

Professor Sipho Seepe is an independent political analyst.