Published in the Sunday Times 14 April 2024
In almost all court
appearances Jacob Zuma has been, his supporters have asked "Wenzeni uZuma". With its intricate layers and the inability of the criminal justice system to provide a definitive answer, this question has
become a mystery that prosecution authorities cannot settle. The complexity of
this question, not of its own making, and somewhat due to the ingenuity
of Zuma's complex of legal minds, has compromised the National Prosecution
Authority's reputation to lead conviction guaranteeing prosecutions. This
compromise has several other high-profile individual cases as evidence of
deeper fissures in constructing prima facie evidence to justify
persecution.
The constant pursuit of
Jacob Zuma amidst his unrelenting support by many South Africans has iconised
him to levels where any guilty verdict might compromise the judicial system,
despite its independence. The design of South Africa's constitutional order post-1994
has a basic structure, the setting up of scaffoldings to build the credibility
of justice and the blindness of the proverbial lady justice. The baggage of apartheid-era
jurisprudence, criminalisation of conscientious contempt of the judicial system,
the tradition of pronouncing a guilty verdict in a court of public opinion
before meticulous consideration by the judiciary, and the colonial lordship
that characterises the office of being a judge in a system which expects the
hermetic sealing judges as humans in each case, continues to muddy the
credibility of judgements.
Although the criminal
justice system in South Africa, because of its history of rendering sections of
society visible to lady justice because of their race and conscience, is
undergoing unprecedented transformation, it is still etched in the rule-by-law
jurisprudence. Its power to be on the side of the accused in a civil case, as a
defender of their human rights, should not be exaggerated. The ability of
judicial officers to be stretched to the ultimate limits of the accused
exercising his 'innocent until proven guilty' rights has either
failed or lost patience in matters involving Jacob Zuma. The presumed innocent
right of any accused person is still closely associated in the mind of society,
and particularly Zuma's supporters, with the overall rights and freedoms of the
person, whereas the conduct of the person about the principle, where it
persists, is distant and generally questionable.
In a society that has
oppression and marginalisation, including criminalisation, of political
activists from the fairness of justice, how the criminal justice system relates
with those credited, as part of a collective, or leadership, with facilitating
the demise of that injustice becomes an important consideration, lest its
credibility might be in tatters. In this category of persons, Zuma looms large,
notwithstanding his condition of being a serial suspect who is never found
guilty. By one perceived to be a wrong action of incarcerating Zuma for contempt
of a civil case court, which by his definition was a conscientious act, the
judiciary might have injured the criminal justice system from which it could
take a new generation of jurists' effort to recover.
The pursuit of
corruption and state capture of accused individuals has led to public debates
on the rights of suspects, especially politicians, to be conducted in a narrow
and factional way. With the NPA being an organ of the state, operating under
the executive authority, and how it has treated Zuma cases, its claim without
fear or prejudice becomes difficult to believe. The NPA's handling of its
monopoly on deciding which facts, which facts about the facts, which persons
will be state witnesses, which persons will be pardoned, has in almost all
cases Zuma is involved made the question "wenzeni uZuma" to linger
on. There is the power and fairness of the NPA to prosecute, frequently
exaggerated, and there is the public’s perception of that power, which is
difficult to exaggerate, particularly when the accused is a supposed leader or
hero. With the habit of hostility in cases perceived to be political,
notwithstanding their criminal nature, being deep, the speed at which they are
resolved builds confidence in the fairness of the CJS.
The lingering 'wenzeni'
question has stayed so long that erasing it from the minds of Zuma's supporters seems insurmountable. The other collateral is the
pigeonholing of the accused by the judicial complex. As a type of systemic bias, how Zuma cases were treated might, in the long run, even rob society of its appreciation of a justice system that is blind to who is accused. Biases
have a cumulative effect; they are corrosive to justice. The brute truth is
that "systems, including prosecution ones, were built biased by humans and
systems can only be dismantled and made just by humans". The template of a
just and rules-based order depends on the perception of society that the CJS
operates without fear, prejudice, and favour. The firmament of retribution meted out on cases involving Zuma has, as a result, changed the template of party politics in South Africa and, if unmanaged, could trigger a process to revisit the CODESA settlement and the basis of the constitutional order, posing a significant threat to the country's stability.
The truism that (human)
rights come from (human) wrongs should teach post-oppression regimes that If
society violates or repeals these rights, it risks repeating past injustices.
The "wenzeni" question might well be a proxy for a more extensive
"senzeni" by a society that might have reached a point where the
stubbornness of the templates of economic domination suffocates human agency.
The South African settlement cannot be said to have been total freedom; it
qualifies as a liberation promise predicated on the goodness of the haves to
volunteer what they have for the good of all. The shifting of majorities, as we
have seen with coalition governments, has exposed how gains of the liberation
struggle or guarantees in the constitution can be rolled back and injustices of
the past resurfacing. In this context, the more unanswered "wenzeni"
question is that the constitutional order template is at greater risk,
potentially destabilising the country's political and legal systems.
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