BY SIMBA CHITANDO
- In terms of Constitutional Law & criminal procedure, everyone is entitled to a fair trial, this means before being found guilty or innocent of a crime, the prosecutor has to set out a charge, which the accused pleads to. After pleadings, there is a trial. Where there is an opening statement, calling of witnesses, an opportunity to cross examine the witnesses who say you’ve committed a crime, and an opportunity to call your own witnesses. Then closing arguments. If found guilty, then there is a similar process to mitigate sentence. In Zuma’s case none of the above happened. He was found guilty, by an affidavit, on the papers, from the Deputy Judge President, who is sitting in the commission of enquiry. No trial, no cross examination of evidence, no mitigation of sentencing. A straight go to jail process. Not even one provision of the Criminal Procedure Act, or the Constitution has been followed.
- The complainant is a Deputy Judge President. With the Chief Justice on leave, pending retirement, every Judge at the Constitutional Court reports to the Deputy Judge President. That means President Zuma has been found guilty by the complainants subordinates. After all the processes mentioned above have been ignored.
- The complainant is Zuma’s brother in law. A fact that the Deputy Judge President did not reveal at the outset of the Commission of Enquiry. He had a duty to recuse himself. He did not. Let that sink in. Your brother in law is a Judge, in a case where you are accused of corruption, & you refuse to give evidence before him, because you believe it’s unfair, & that he should recuse himself. He refuses to recuse himself. Files an affidavit, which means the Judge becomes a witness, against you, in the same case he is presiding over. For that reason, the complainant refuses to appear in Court. The brother in law refers the matter to his subordinates, who find him guilty and sentences his estranged relative to 15 months in jail, in one motion, no trial.
- The Constitutional Court is the highest Court in the land. You cannot appeal it’s judgements. Criminal trials, even for murder, begin at the Magistrates Court level, & work they way up, procedurally, to allow for a full ventilation of a defence by the accused. An ordinary accused can appeal to the High Court, then the Supreme Court of Appeal, & then the Constitutional Court. In Zuma’s case the process begun, and ended in the highest Court in the country. This means Zuma was denied an opportunity to appeal any of the several deficiencies in the case against him in a superior Court. The right to appeal a judgment is a Constitutional right, deprived from President Zuma, at the outset. The complainant, the Deputy Judge President, would have known that referring this matter to the Constitutional Court, where his subordinates sit, would leave Zuma no opportunity to ever appeal any finding against him. He did this deliberately, with malicious intent.
- Zuma had no chance. The judgment says this is a unique case, which ordinarily rules do not apply. This would mean, on the Courts own finding, Zuma would not have known what the extra ordinary process would have been at the beginning. Zuma’s lawyers came to Court to deal with applicable laws, and not laws being created on the go. On the face of it. The extra ordinary process was by design crafted to deprive Zuma of his constitutional rights, & expedite a guilty verdict & sentence, with no possibility of appeal.
These points are not exhaustive, there are several other issues I have with the judgment, but for now, I feel that there has been a serious miscarriage of justice by the highest Court in South Africa.
It does not bode well for the future of this country as an internationally recognized constitutional democracy.
We are living in very dangerous times, where judicial activism, and overreach in politics, may damage the legal system, & administration of justice.