Against the background of the 2019 election, the interaction between Jacob Zuma as the former president of the republic and various structures of the state take on some of the qualities of The Mikado, the operetta by WS Gilbert and Arthur Sullivan, which was first staged in 1885.
It must be the most popular and entertaining of all their work, the plot being a complicated farce driven by a musical score and a libretto that do each other inspired justice.
If one assigns the role of the Mikado himself to Zuma, the character fit is not bad, for both depict an unprincipled and grotesquely unpleasant head of state, making ruthless misuse of the powers they hold. The chorus sings:
Our great Mikado, virtuous man,
When he to rule our land began,
Resolved to try
A plan whereby
Young men might best be steadied.
So he decreed, in words succinct,
That all who flirted, leered or winked
(Unless connubially linked),
Should forthwith be beheaded …
Let’s re-write that:
Our Msholozi, the very same
Who once our president became
Resolved to try
A plan whereby
His crimes might best be hidden.
So he chose, in deeds that tricked,
To stop all courts that might convict
(No matter this provoked conflict)
Only lawyers who’d do his bidding …
An understanding of the theoretical basis of criminal justice in SA reveals how horrible the emerging picture was.
The criminal courts function under the constitution, and sometimes we invoke its terms without thinking about what they mean. A commonly-quoted passage from the bill of rights is section 35, to the effect that every accused person has the right to a fair trial. This includes the right to be presumed innocent. The playing field of a criminal trial is thus not level, but tilted against the prosecution. There is no principle that there must be a prosecution for every crime, and the call for an impossible “zero tolerance” is a demagogic cliché that takes no account of the needs of an humane society.
Section 179(5) of the constitution states that the national director of public prosecutions must determine the prosecution policy that must be observed in the prosecution process, with the concurrence of the cabinet member responsible for the administration of justice and after consulting the directors of public prosecutions.
The National Prosecuting Authority Act, which the constitution requires to be passed, fills in the details and replicates this provision, establishing the National Prosecuting Authority (NPA). It is striking that there is so little public awareness of this important document. It is typical of other jurisdictions in the Commonwealth that follow the British-based accusatorial model for criminal trials, and one of its purposes is to support the legitimacy of the criminal justice system. For the purpose of this essay one passage is important; the policy explains that prosecutions are in the public interest, and once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.
It is the final phrase of five words that are especially relevant to this discussion. The question of why Zuma was not prosecuted with Shabir Shaik was raised by the judge hearing the Shaik case in 2004, and it has now been raised again during the high court application brought by Zuma to stay the revived prosecution. His case appears to be essentially that for several reasons it is not in the public interest that he should go on trial.
The claim takes several forms. One is that the prosecution has been brought unlawfully, unconstitutionally and in a partisan manner; another is that he could have been prosecuted in the same court as Schabir Shaik, and that it is accordingly unfair to try him separately now. Yet another is that the delay in bringing him to trial is unconscionable and unfair.
One enduring theme is the claim that the prosecution of Zuma is politically driven. Initially, it was claimed that then president Thabo Mbeki was behind the case. For example, when he was the president of the ANC Youth League, Fikile Mbalula described the charges against Zuma as “trumped up” and said the decision to prosecute him was based solely on political interference by Mbeki and former director of public prosecutions Bulelani Ngcuka.
How Mbeki managed this is never explained. As the policy document provides, a prosecution should not commence unless there is a reasonable prospect that it will result in a conviction. Evidence is needed to establish such a prospect — witnesses must be presented to the court by the prosecution to testify under oath and to be tested in cross-examination, and documents and other exhibits have to be produced. Are those who say Zuma is being framed saying witnesses who give incriminating evidence are perjurious liars, that all incriminating documents are forgeries and all exhibits are malevolently planted or contrived?
If Mbeki manufactured a case against Zuma it seems he and a large gang of lawyers, police officers and others he gathered around him for the purpose must at the very least have committed perjury, subornation of perjury, forgery and perverting the course of justice — all seasoned with incitement and conspiracy.
There is a further problem to be faced by those who accuse former present Mbeki of orchestrating a case against Zuma. When Mbeki took the presidential oath he swore solemnly that he would “be faithful to the Republic of SA”, and would “obey, observe, uphold and maintain the constitution and all other laws of the republic”. If he became aware of any evidence or suspected Zuma might have committed a crime, Mbeki was by his oath obliged to put the matter into the hands of the criminal justice system, and had he failed to do so he would have committed sedition.
His motives and personal feelings towards Zuma would have been irrelevant. As the appeal court pointed out, “a prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent.” Quoting well-established authority, the court said the best motive cannot cure an otherwise illegal prosecution, and the worst motive cannot render an otherwise legal prosecution illegal. Accordingly, even if the prosecution of Zuma were to be driven by political considerations, this would be irrelevant if the charge is well-founded.
As the fog clears slowly around the corruption case being brought against Zuma, so the legitimacy of the criminal justice system and prosecutorial independence are being reasserted. The process is necessarily slow and is unlikely to be affected by the results of the election, though doubtless the prosecution of Zuma will be in voters’ minds.
The farce of the Gilbert and Sullivan operetta in an imaginary Japan, however, is replaced by SA’s real nightmare, which becomes more horrible as its alleged details take shape. Voters will have to decide how to view the developments within the criminal justice system. Are they but mirages, or do they signal real change?
• Bennun is with the Institute for Justice and Reconciliation
Published by Business Day