Why the Zuma decision is wrong
April 6th, 2009 | by kilps |Watching the NPA news conference this morning, I had the distinct feeling that the Acting National Director of Public Prosecutions knew what he was talking about. His discussion surrounding how pure political interference in a case is not in itself a satisfactory reason not to pursue it was all well explained. But it all came tumbling down when he got to the conclusion.
The Acting NDPP quoted in his statement, from a Supreame Court of Appeal judgements (which incidently invloved the Zuma matter), the following:
“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, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same apply to prosecutions.”
That text is very clear – just because someone manipulated a process does not mean that the whole trail should be stopped, because justice has not yet taken its course.
Some commentators drew parrells with the how search warrents, if obtained illegally, are inadmissable in court. However there are no similarities here – particularly in the context of what interference is alledged (and note that after all the talk of Zuma being presumed innocent we have to allow room for some explanation for the tapes) to have taken place.
The infamous tapes implicate interferance in the decision as to the date of the announcement of the re-charging of Zuma around the time of the ANC Polokwane conference. The timing of this announcement has no impact on the case against Zuma – the NPA would present the same case in court regardless. Rather it had political ramefications – impact on the elections for the next president of the ANC.
As the acting NDPP put it himself – “It is not so much the prosecution itself that is tainted, but the legal process itself.”
Again the acting NDPP’s own words sets the final context around which the final decision should have been made (own emphasis added):
“There will always be a tension between two extreme positions in that, if a trial is discontinued, the public perception would be that the criminal justice system condones improper conduct and malpractice by law enforcement agencies – and if a trial is discontinued the criminal justice system will incur the reproach that it is failing to protect the public from serious crime.
An assessment of abuse of process involves a balancing exercise. In Latif it was clear that a fair trial was possible. The overriding question, however, was whether the trial ought to be discontinued “on broader considerations of the integrity of the criminal justice system”. According to Lord Steyn, criminal proceedings may be discontinued not only where there will be no fair trial but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.”
So now we have to weigh the two senarios up: on the one hand we have an individual, admitidly an important one, accused of moving the date of an announcement for political gain and on the other hand we have the NPA continuing to insist that it has a winable case against Mr Zuma and that nothing has convinced them otherwise.
The prosecution of Zuma, regardless of what the tripartiate alliance tries to tell us, is in the public interest. He is accused of manipulating serious processes for personal gain at the expense of citizens and so these accusations must be persued to the courts until their truth or lack-thereof is established.
It is with this in mind that one has to conclude that, atleast for the reasons given, the decision to drop charges is wrong. The interferance in the case is serious and must be investigated, but has no bearing on the outcome or fairness of the case itself. Jacob Zuma was undoubtably treated unfairly – but his rights to a fair trial were not infringed. There isn’t much else to it.
One Response to “Why the Zuma decision is wrong”
By Jeeves on Apr 7, 2009 | Reply
The decision to not proceed with the prosecution based on allegations of political interference alone is a mistake. This situation will weaken Zuma’s leadership when he almost inevitably becomes President of South Africa next month.
Those supporters who were cheering this decision as the removal of the final obstacle from Zuma’s rise to power may be disappointed to realise that his ability to carry through the progressive policies they expect will be hampered by having one hand tied behind his back.