WilI Zuma have day in court?
SOUTH Africa’s Supreme Court of Appeal has dismissed President Jacob Zuma’s and the National Prosecuting Authority’s appeal against an earlier decision by the North Gauteng High Court that a decision to dismiss 783 charges against Zuma in 2009 was irrational.
Back then, Zuma had claimed the charges against him were part of a political conspiracy to prevent him from becoming president. But the North Gauteng High Court, in a case brought by the Democratic Alliance, ruled last April that the charges of corruption, money laundering and racketeering against Zuma should be reinstated.
The Conversation Africa’s politics and society editor, Thabo Leshilo, spoke to constitutional law expert, Pierre de Vos, about the latest decision. independence and impartiality of the prosecutions body. The judgment also notes that it was illegal for Zuma’s legal team to obtain and share the intercepted communications – the so-called spy tapes – which raises questions about why no one (including Zuma’s lawyer, Michael Hulley) was ever charged for breach of the law.
The Appeals Court left open whether Abrahams has the legal power to review a decision by the National Director of Public Prosecutions or not.
If Abrahams does have this power, and if he again drops the charges, it will probably be the end of the matter.
If the charges are not dropped, the NPA will proceed with the prosecution, at which point Zuma’s lawyers will almost certainly approach the court to ask for a permanent stay of prosecution. It is not practically possible for Zuma to appeal to the Constitutional Court as his lawyers already conceded before the Supreme Court of Appeal that the decision to drop the charges was invalid. out in its judgment, Zuma and his lawyers have done everything in their power to prevent a situation where the president would have his day in court and would have to answer to the charges levelled against him.
This is why the president and his lawyers will continue to try to stop the prosecution by submitting new arguments to the NPA on why the charges should be dropped.
And, if that does not work, to try and convince the court that his prosecution must be stopped permanently because for some or other reason he could not receive a fair trial. South Africa’s sitting president can be charged. There is no provision in the country’s constitution – or in ordinary legislation – that stands in the way of this happening.
Parliament could pass a law that changes this and protects a sitting president from criminal liability. But this wouldn’t get very far as such a law would be unconstitutional.
It would be breach of the Rule of Law as developed by the Constitutional Court and it would also be in breach of section 9(1) of the Constitution which states that: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
No sitting president has ever been charged with a criminal offence in South Africa. President Nelson Mandela was required to testify in a civil (as opposed to a criminal) case, after which the Constitutional Court imposed limits on when a sitting president would be required to testify in a civil case.
It would be unprecedented for a sitting president to face criminal charges and be prosecuted.
Professor Pierre de Vos is the Claude Leon Foundation chair in constitutional governance at the University of Cape Town. This article is from The Conversation.