‘Wenzeni uZuma’ raises profound questions of justice and fairness
In almost all the court appearances Jacob Zuma has made, his supporters have asked the question “Wenzeni uZuma?” (What has Zuma done wrong?) This question is one the prosecutorial authorities cannot answer. The complexity of the question has even compromised the reputation of the National Prosecution Authority (NPA) for securing convictions. This damage is also seen in several other high-profile cases, which points to deeper problems associated with the construction of prima facie evidence to justify prosecutions.
The constant pursuit of Jacob Zuma notwithstanding the unwavering support he has received from many South Africans has made him an icon, meaning any guilty verdict handed down by a court might compromise the judicial system as a whole, despite its notional independence. South Africa’s post1994 constitutional order has as foundational principles judicial independence and equality before the law. The baggage of apartheid-era jurisprudence — such as the criminalisation of any expression of contempt for the judicial system, the pronouncement of a guilty verdict before the matter had been meticulously considered by a court, and the colonial conception of what it means to be a judge — continues to impair the credibility of judgments.
Though the criminal justice system in South Africa, owing to its history of failing to protect the rights of citizens because of their race and conscience, is undergoing unprecedented transformation, it is still constrained by outmoded colonial-era jurisprudence. As such, its capacity to be on the side of the accused in a criminal case, as a defender of that person’s human rights, should not be exaggerated. The capacity of judicial officers to honour the “innocent until proven guilty” principle seems to have failed in matters involving Jacob Zuma. However, the right of any accused person to be presumed innocent is still closely associated in the minds of members of society, and particularly Zuma’s supporters, with the general rights and freedoms of the person.
In a society characterised by ongoing oppression and marginalisation, including the criminalisation of political activists, how the criminal justice system responds to those who are credited, individually or as part of a collective, with facilitating the demise of that injustice becomes an important consideration, lest the credibility of the judiciary itself be impaired. In this regard, the figure of Zuma looms large, as he is continually a suspect who is never found guilty. By incarcerating Zuma for contempt of court, which he, himself, framed as a conscientious act of resistance, the Constitutional Court may have damaged the criminal justice system to such an extent that it could take a generation of new jurists to repair it.
State capture
The pursuit of individuals accused of corruption and state capture has led to public debate about the rights of suspects, especially politicians, not to be treated in a narrow and factional way. As the NPA is an organ of the state operating under the influence of executive, the manner in which it has dealt with Zuma’s corruption cases has been questionable, rendering its claim of acting without fear or favour difficult to believe. The NPA’s execution of its monopoly on deciding which facts are relevant, who will be state witnesses, and who will be pardoned has in almost all cases involving Zuma led to the wenzeni uZuma question lingering on the lips of his supporters.
There are also questions about the power of the NPA to prosecute and the fairness of its doing so, which are frequently exaggerated, and there is the public’s perception of that power, which is difficult to exaggerate, particularly when the accused is supposedly a leader or hero. There is a great deal of public suspicion around cases seen as political — notwithstanding that they are criminal, and the speed with which they are resolved builds confidence in the fairness of the criminal justice system.
The wenzeni question has lingered for so long that erasing it from the minds of Zuma’s supporters seems impossible.
A further issue is the pigeonholing of the accused by the judicial system. If there are seen to be examples of systemic bias, the handling of Zuma’s cases might in the long run undermine society’s belief that its criminal justice system holds equality before the law as a central value. Biases have a cumulative effect, and they are corrosive to justice.
The brutal 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 in society that the criminal justice system operates without fear, prejudice or favour. The retribution meted out in cases involving Zuma has changed party politics in South Africa and, if unmanaged, could trigger a demand for the Codesa settlement and the nation’s post-1994 constitutional order to be revisited, 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 [what have we done?] by a society that might have reached a point where the stubbornness of the templates of economic domination which suffocate human agency. The South African settlement cannot be said to have given rise to total freedom — it is a liberation promise predicated on the willingness 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 shown how the gains of the liberation struggle or constitutional guarantees can be rolled back and injustices of the past can resurface. In this context, the more unanswered wenzeni question is whether the current constitutional order is placed at greater risk, potentially destabilising the country’s political and legal systems.