Very interesting article

[marine1]

http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20080806061331708C136109
Civil WAR anyone?
T.I.A

" Is this is how civil war starts?

August 06 2008 at 06:41AM

By Mervyn Bennun

Jacob Zuma was foully treated by the National Prosecuting Authority in 2003 when National Director Bulelani Ngcuka said that "whilst there is a prima facie case of corruption against the deputy president, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case".

The Public Protector condemned this statement in a report which should be read by anyone who wants to understand the basic jurisprudence of a criminal trial.

Ngcuka's statement disregards the differences between the duties of a prosecutor and a court.

The directives published by the National Prosecuting Authority (as required by the Constitution and the National Prosecuting Authority Act) state that the discretionary decision for the prosecution to take is whether there is a reasonable prospect of a successful prosecution; the judge alone decides whether, having heard the prosecution's case, there is a prima facie case (or, as it is sometimes said, whether there is a case for the accused to meet).


This is not just a game with words: it distinguishes between the functions of the prosecutor (who does not decide on guilt or innocence) and those of the judge (who does not prosecute) and is fundamental to the constitutional protection of the rights of all accused.

In contrast, what Ngcuka said means that as the NPA (taking on the judge's role) had concluded that Zuma was on the face of it guilty, it was better (taking on the prosecutor's role) that he should not be prosecuted as there was a risk that he might be acquitted.

Zuma has paid an appalling price for this unconstitutional garbage.

The prosecution services in many countries have such policies - sometimes in almost identical terms.

Advocate Lawrence Mushwana could properly have expressed astonishment that the National Director of Public Prosecutions - a lawyer, of all people! - could make such an outrageous statement.

Had Ngcuka not resigned shortly after the Public Protector's report was published, a Ginwala-type inquiry might have been justified to address the question of whether he should be removed.

It would be improper to express any view on whether Zuma is corrupt or not or to press for any particular outcome of the application by Zuma in the High Court in Pietermaritzburg to review and set aside the decision by the NPA to prosecute.

One may, however, speculate on the possible issues which will be raised in the current proceedings.

The court may have to consider whether, damaging though the statement by Ngcuka was, it is a separate matter from any delay in bringing the case against him.

Perhaps the court might have regard to the policy directives which state that the NPA, when considering whether it would be in the public interest to prosecute, should take into account "whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offence and the role of the accused in the delay".

Much of the delay has been caused by Zuma himself, exercising his constitutional right to make various applications and appeals in an effort to stop the proceedings.

So the court might have to consider whether the NPA exercised its discretion correctly when deciding that it was in the interests of justice that delays caused this way, should not be a final barrier to the charges ever being heard.

I make these points to emphasise that, ultimately, what is at issue is the law around the constitutional right to a fair trial.

This was the very moment for the leadership of the ANC to proclaim its trust in the courts which have to take these decisions.

Instead, ANC secretary-general Gwede Mantashe has attacked the Constitutional Court and its judges as being "counter-revolutionary", and the ANC, through its spokesperson Jessie Duarte, has described the decision to prosecute Zuma as "persecution".

 

[marine1]

We denied legitimacy to the apartheid courts because of their undemocratic basis, and this attack on an institution which lies at the heart of our democracy and our constitution is in the same paradigm.

It is no defence to claim that judges are not above criticism.

This misses the point entirely: there is all the difference in the world between attacking the courts of our hard-won democracy as an institution on one hand and, on the other, offering reasoned criticism based on an analysis of judges' decisions: we lawyers do this daily and vigorously, our legal system depends on this, and we have not spared even the Constitutional Court.

Further, Duarte provokes the question: what would the ANC's reaction be if the court decided that a trial would be fair? Would the judge then be a party to the "persecution"?

And if appeals against this decision were unsuccessful, would this merely prove that all the judges were part of the same plot?

Mantashe has tried to explain away the call by Julius Malema that those who exercise their constitutional right to oppose the elevation of Zuma to the presidency of South Africa must be "eliminated" (his euphemism, after initially calling for them to be killed, was used in the apartheid years when state operatives also "removed opponents permanently from society").

Mantashe's response that Malema is "a young leader who had to be guided and allowed to develop out of the arrogance of youth to become a competent and confident leader" is shocking from the ANC leadership.

Malema is 27 years old - 13 years older than the age for full criminal capacity; on what basis should he be granted a special indulgence if charged with incitement to commit murder? Should the voting age be raised to 30?

How does this "Ag, it doesn't matter - he's just young" attitude counter the appalling violence which has recently taken place in ANC matters - let alone in South African life generally?

Malema has in fact assumed a grotesque mixture of the roles of judge and prosecutor, following some sort of illegitimate trajectory reciprocal to the one taken by Ngcuka: he has decided that Zuma is innocent and so must not be brought to trial in case he is convicted.

Why has Zuma himself, as the president of the ANC, not shown leadership and stopped this dangerous mess?

Why, instead, must one exegesis after another be supplied to provide a different meaning to words which appear to be unambiguous?

At Polokwane, there were frequent references to "democracy".

A resolution on "Ethics and Integrity" says that "ANC members and leaders in particular should continue to actively promote ethical and democratic values and lead by example", and there are frequent references to the democratic nature of the ANC and the need to strengthen democracy in South Africa.

By ignoring the conduct of Malema and Cosatu secretary-general Zwelinzima Vavi - who defiantly echoes Malema's menacing words - the ANC reduces these high ideals to the status of policies which apparently become self-executing if one merely states them forcefully enough.

Further, there is no law which states that, because he is Jacob Zuma, he must not be prosecuted.

There is a law which states that, if a prosecution would be an abuse of the processes of the state, then it must not happen. Whether this applies or not is for a court to decide on evidence laid before it.

In his affidavit to the court in Mauritius, Zuma has accused both President Thabo Mbeki and the head of the NPA of having together co-ordinated both Zuma's dismissal in 2005 from the office of deputy president of the Republic and his subsequent prosecution.

He has explicitly accused Mbeki of taking part in a political conspiracy to smear him with corruption charges, and in the application to the High Court in Pietermaritzburg, he has repeated that there is a plot to discredit him.

These are claims publicly made by others also - that behind the prosecutions is a political scheme to use the state as an engine to prevent him from becoming the president of South Africa.

It is worth bearing in mind that these accusations against Mbeki are against a fellow ANC member and, if true, his offences would have started when Mbeki was himself the president of the ANC.

This attack on the unity of the ANC is endangering our country's constitution. If these claims are true, there is a dreadful plot which must involve many people in high office - even, it seems, Mbeki himself - and many offences of the greatest possible gravity: treason, sedition, perjury and subornation of perjury, conspiracies and incitement to such offences, and frustrating or attempting to frustrate or defeat the course of justice, are some that come to mind.

If this is really believed to be the case then such charges must be laid, or else those who use this wild and dangerous rhetoric are playing with fire.

This is not a game: this is how civil war starts. Indeed, the first blows may already have been struck: violence in the affairs of the ANC has been mentioned above, but even more alarming is the violent and defiant rejection by some residents in Khutsong following the ruling of the Constitutional Court that the demarcation processes were legal.

The deadly message is taking shape: treat the democratic state as the enemy if its legitimate processes don't give you what you want.

Is the ANC leadership now attempting to bludgeon the courts into submission?

The danger is real of forces within the ANC becoming the enemy of the very state we have ourselves played the leading role in founding; and here is a voice from within the ANC, member number WC 142987, crying out in growing fear and dismay. Even more than I value my decades-long membership of the ANC, I value our country's magnificent constitution.

The Freedom Charter that led to it proclaims that "All shall be equal before the law".

It concludes with a section which reads: "There shall be peace and friendship!" after stating also that "Peace and friendship among all our people shall be secured by upholding the equal rights, opportunities and status of all".

The Congress of the People was designed to include every South African, and the Constitutional Assembly that drew up the final constitution of our country after the democratic 1994 election was in effect its long-delayed next session.

The Freedom Charter helped us all to shape the constitution which unites us, and its institutions reflect our democratically expressed wishes.

I cannot believe that the courts we fought for, and the judges we appointed to them so carefully, are now the enemies of democracy.

The Freedom Charter and our constitution are more important than the elevation of any particular individual to the presidency of the Republic.

Where is the political leadership? What is happening now to our victories?"