Sunday Times

‘Wenzeni uZuma’ raises profound questions of justice and fairness

- FM LUCKY MATHEBULA ✼ Mathebula is the founder and CEO of the Thinc Foundation and a public policy resource expert specialisi­ng in intergover­nmental relations and public administra­tion

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.

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