Constitutional Hill

Innocent until guilty

The double standards of Jacob Zuma supporters

Sep 10th, 2008
by Pierre De Vos.
127 comments

We are often told that Jacob Zuma has a right to be presumed innocent until proven guilty. Some go further and argue that we are not allowed to make any adverse ethical judgment about the President of the ANC because if we did this we would be infringing on his right to a fair trial (and sometimes, sommer his right to dignity and privacy as well).

As I have argued before, this kind of reasoning is based on a complete misunderstanding of the right to a fair trial guaranteed by the Constitution. The right to a fair trial includes the right to be presumed innocent by a court until such time as the state has proven its case beyond reasonable doubt. There is no right in the Constitution not to be charged or to be presumed innocent by ordinary citizens after one has been charged.

But if we take these supporters of Jacob Zuma at their word and if we presume that they really believe only a court of law can make any value judgment about the moral character of Jacob Zuma, then we should at least expect some consistency from them. This consistency is, however, often spectacularly lacking.

Such a consistent position would require all of us not to prejudge the case against Mr Zuma and not to jump to any conclusions about either his guilt or his innocence. Instead, some of his supporters seem to have concluded that Mr Zuma is innocent, no matter what might be shown before the court. They really do not want any facts to get in the way of the perks they see glimmering on the horizon. Why bother with facts if bluster will serve you just as well.

I was therefore not surprised to read that Young Communist League (YCL) Gauteng secretary Alex Mashilo believes that a “sober judge” will scrap corruption charges against African National Congress president Jacob Zuma. According to The Times he said:

“We believe the court will be sober… No sober judge will be ruling in favour of the prosecution… The NPA [National Prosecuting Authority] has violated its own rules. There is no way that the judge can find in favour of the NPA. If the court rules otherwise … we will unleash a mass struggle campaign,” said Mashilo, explaining this meant that they would hold marches and pickets. We will mobilise all our resources to make sure the case comes to an end.”

If Mr Zuma must be presumed innocent of any wrongdoing, surely so does the NPA? Someone should tell these youngsters that it is not for the YCL or anyone else to decide how the judge should rule. I suspect Mr Mashilo is not a lawyer either, so he cannot even be said to be reverting to informed speculation. Wishful thinking is more like it.

The same argument holds for all those people who claim Mr. Zuma’s rights have allegedly been violated. Only a court of law can make a definitive finding on this matter. If a court finds that Mr Zuma’s rights have been violated and – very importantly – that such a violation has made it impossible for Zuma to receive a fair trial before an independent and impartial judge, then fair enough: we can all go home  then and Mr Zuma can pack his bags for the Unions buildings instead of for Polsmoor Prison.

But a court may well find that there was no breach of Mr Zuma’s rights or that even though there might have been a breach of his rights, he will still be able to receive a fair trial. Then Mr Zuma should surely “get his day in court” to determine whether he took all that money from a convicted fraudster and did favours for him with or without the intention to be corrupt and fraudulent.

I am obviously being ironic here, because there is as slim a chance of the Youth League types accepting a court verdict against Mr Zuma and singing the praises of our independent judiciary afterward as there is of me winning the Miss World competition. (I would probably be able to pull off the interview section, explaining – as those competitors all do – how I will fight for world peace and the children, but Iet’s face it, I probably won’t be able to pull off the swimwear section of the competition….)

Reading statements like that of Mr Mashilo reminds me again what a wonderfully free country we live in. In our beautiful democracy even a youngster like Mashilo is free to make an ass of himself and be qouted respectfully in the media nevertheless. Viva democracy.

On “innocence” and an orange prison suit….

Aug 6th, 2008
by Pierre De Vos.
39 comments

Last year I spent a few hours in prison. Not as a guest of the state, I should add, but to accompany students on study tour. Contrary to popular belief, prison is not a great place to spend your life. It’s cramped and dark, the food is foul, one has no privacy and one’s dignity is severely compromised. Besides, I don’t think anybody looks their best in an orange prison suit.

For the state to send somebody to prison is therefore a very serious matter indeed. That is why our Constitution safeguards the rights of accused persons and why the state has to prove the guilt of an accused beyond reasonable doubt. This is an extraordinary high hurdle for the state to overcome and with good lawyers and enough money many guilty individuals are acquitted. Some accused individuals are also acquitted because the police bungle the investigation or because they really are innocent and were framed by the police.

Because sending someone to prison is such a drastic infringement of an individual’s liberty and rights, our Constitution also requires that every individual be given a fair trial before an impartial and independent court where an accused will be presumed innocent until such time as the state has shown – once again, beyond reasonable doubt – that the accused is guilty of the crimes of which he or she is being accused.

This is also why Mr. Jacob Zuma – like every other South African, whether they are rich or poor, black or white, politically connected or not – should never be presumed to be guilty of a criminal offence – either by a court, by the media or by ordinary citizens – before a court of law has found him guilty. To hold otherwise would be to undermine one of the basic tenets of our constitutional state based on the Rule of Law.

Mr. Zuma – and the ANC leaders who support him in his dark hour – are therefore correct to insist that no one should assume that Mr. Zuma is guilty of an offence merely because he was accused of wrongdoing by the NPA. They are correct, also, that he should not be treated as a criminal merely because he is an accused in a criminal trial.

However, does this mean that we should be prohibited from making any value judgment about Mr. Zuma’s character and his fitness for high public office until such time as he is either acquitted or convicted by a court? I think not.

When we make value judgments about an individual – especially an individual in the public sphere – we are not required to establish beyond reasonable doubt that any allegations of wrongdoing by that person are true or not – just as we are not required to establish beyond reasonable doubt whether an individual is a good or bad person, a kind or nasty person, a good or bad leader, before we decide whether we want to befriend that person or elect him or her to high public office.

A provocative example will suffice to illustrate my point.

A few years ago Dr. Wouter Basson (dubbed “Dr. Death” by the media) was charged with very serious crimes, including murder, for his role in assisting the apartheid military in various “dirty tricks” campaigns. Basson was acquitted and was therefore not sent to prison. Evidence presented in court and widely reported in the media suggested that Dr. Basson was not a man of particular integrity – to put it mildly.

Because of this evidence, most sane South Africans formed an unflattering opinion of Dr. Basson and I am sure if he were ever to run for public office there would – rightly – be an outcry that such a man could even think of sitting in Parliament. Although a court found there was not sufficient evidence to send him to jail, evidence presented in court allowed ordinary South Africans to make a value judgment about his character. This is how we always form opinions of public figures.

Very few South Africans would say that because Wouter Basson was acquitted, he is the kind of man that we would fight and kill for, the kind of man that should lead South Africa as its President. I, for one, would be freaked out to wake up from an operating table to find old Wouter bending over me with his scalpel in hand. Quite frankly, I would not even want to have him to my house for a cup of tea.

This is because the threshold for everyday value judgments about public figures is much lower than the threshold employed by a criminal court. If it were otherwise, it would be almost impossible to form any opinion about a public figure or to make any ethical value judgment about the character of any politician.

I happen to think there is no moral equivalence between Wouter Basson and Jacob Zuma. Mr. Zuma spent several years on Robben Island and paid a high price for his fight against apartheid and is – in my opinion at least – of a much higher moral character than Wouter Basson. I would love to have Mr. Zuma over to my house for a cup of tea – he looks like a fun guy and he will have such interesting and inspiring stories to tell about his time on Robben Island and in the ANC in exile.

But Mr. Zuma is an accused person in a criminal trial. The highest court in the land has confirmed that he received money from a fraudster and then did favours for that fraudster, that he met with arms deal representatives who then paid him a bribe via the fraudster, and that he lied to Parliament about this.

All this does not make Mr. Zuma guilty of any criminal offence. However, in the absence of any plausible explanation by Mr. Zuma about these findings, it does make him, in my opinion, unfit for high office. This does not mean I am presuming he is guilty of the charges brought against him. It merely means that given all the evidence presented by the state and reported in the media and given Mr. Zuma’s own lack of explanation, I have made a value judgment about his character, much in the same way that I made a value judgment about Wouter Basson.

Those who defend Mr. Zuma and who utter dark threats to all and sundry about killing or dying for him, seem to conflate criminal guilt or innocence with this other kind of judgment – namely whether, in the absence of any plausible explanation by Mr. Zuma, any of us should find him a good, trustworthy, honest man worthy of being President of South Africa.

Because Mr. Zuma clearly has a real case to answer in a criminal court and because all the facts known to us point to Mr. Zuma being a deeply flawed man, they want to force us not to form an adverse opinion about him before a court has found him guilty. But this is not how human beings operate outside of a criminal court setting. We make value judgments about people based on the evidence available to us and, so far, it’s not looking good for Msholozi.

I suspect that is also why defenders of Mr. Zuma are attacking the courts and the NPA and making lengthy procedural arguments in his defence. They want to bully us into suspending our ordinary common sense way of judging an individual’s character and would like us to adopt a standard that is not workable because it is far too high and only fit for a criminal court that must decide on whether to send a poor man to jail for 15 years.

They want to obliterate the facts already known to us and never contradicted by Mr Zuma or anyone else, because these facts make it very difficult for any sane person not to worry about Mr. Zuma’s character.

Of course, Mr. Zuma may well prove us wrong. He may at any time produce plausible explanations for taking the money from Shaik, for meeting with the arms company representatives, for lying to Parliament. Sadly he has not done so. Instead, he has muttered darkly about conspiracies without addressing the real concerns presented by the conviction of Shaik and by his prosecution by the NPA. This silence, more than anything else, makes it very difficult not to conclude that Mr. Zuma – while not convicted of any crime and thus innocent – is not a suitable candidate for the President of the ANC or South Africa.

Double standards of the Zuma defenders?

Aug 5th, 2008
by Pierre De Vos.
43 comments

There must hardly be a person in South Africa who cannot recite off by heart when woken up in the wee hours of the morning that Mr Jacob Zuma is innocent until proven guilty. And rightly so. Mr Zuma and those who defend him politically (which is not the same as his legal defense) have rightly cautioned South Africa not to assume that Mr. Zuma is guilty of any crime before he is actually convicted in a Court of Law.

No one should be presumed guilty by an independent and impartial court of law merely because that person is not liked by certain sections of the public – especially the chattering classes – or because the media has reported in detail on the accusations to be leveled against that person during a trial.

After all, section 35(3) of the Constitution clearly states that every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings. The Constitutional Court has made clear that this right is a fair trial right and is based on the assumption that every person must be presumed innocent by the judge or presiding officer hearing the case. This right would be breached if it becomes impossible for a judge or other presiding officer to come to an impartial and independent decision – based on the facts tendered by the state and the defense put up by the accused – on whether the accused is guilty beyond reasonable doubt.

But the Constitutional Court has also indicated on several occasions that no one has a right not to be investigated or charged with a crime. When one is investigated and eventually charged, this will obviously affect one’s standing in the community and one’s dignity and privacy will be affected. But, said the Court, this is an inevitable consequence of any system in which the police or other investigative bodies are given the powers to investigate crimes and bring charges against individuals.

Those who defend Mr Zuma often refer to his presumed innocence but then quickly argue that his rights have been trampled upon because of the investigation against him. In doing this they often wrongly conflate the presumption of innocence requirement with that of breach of other rights and have also often done what they accuse others of doing – namely of prejudging a question that really only a court of law is competent to adjudicate on.

Thus Jessie Duarte, the pugnacious and utterly charmless spokesperson for the ANC, stated as a fact yesterday that Mr. Zuma had been subjected to malicious prosecution by the NPA and that the ANC, while respecting the judiciary, had serious reservations about whether Zuma would get a fair trial.

The ANC president has been persecuted by the media and tried in the court of public opinion for well over seven years. We want the charges dropped. In 2006 they were chucked out of this very court. Now the NPA has come (up) with new charges, one which includes issues of taxation. Yet the South African Revenue Service is not even the complainant. The other charge relates to racketeering, which involves Jacob Zuma’s daughter having a R10 car wash. Let’s face it, the NPA has tried to use public opinion against Jacob Zuma.

I find this kind of statement to exhibit a breathtaking double standard as well as being ignorant of constitutional rights in the criminal procedure field.

The last time I checked, no court has ever found that Mr. Zuma’s rights have been infringed. Neither has any court ever found that Mr. Zuma has been maliciously prosecuted or that his right to a fair trial has been infringed in any way. If it turns out that all those alleged “apartheid era spies” at the Scorpions had fabricated the whole case against Mr Zuma – including evidence of a meeting with the arms company and evidence of payment of more than R4 million to Mr Zuma – then a court may well find that this was a malicious prosecution. They may also consider whether missteps by the NPA would make it impossible for an impartial and independent judge to presume his innocence until such time as all evidence was presented to the court.

In the absence of such findings, the ANC representatives are doing exactly what they are charging others of doing, namely prejudging a case – this time not against Mr. Zuma but against the NPA or sommer the judiciary as a whole. Even the NPA must be presumed innocent – thus presumed not to have infringed Mr. Zuma’s rights or not to have prosecuted him without at least some good reason – until such time as a competent and impartial court makes a finding on this matter. It is also for a court to decide whether the NPA’s actions would make a fair trial impossible.

These attacks on the NPA and the judiciary – both constitutionally created institutions of the utmost importance – by people who are supposed to revere and uphold the constitution and the rights of everyone, is hypocritical, self-serving and dangerous. People like Ms Duarte seems to demand respect for the rights of Mr. Zuma while utterly disregarding the rights of the rest of us ordinary citizens or of the institutions created to safeguard our rights.

There is a good political reason for this, of course, which has nothing to do with respect for human rights of Mr Zuma or anyone else. If one viciously and ignorantly attacks everyone and anyone who might dare to suggest that Mr. Zuma has a case to answer, there is a good chance that we would be distracted from the very real moral and ethical question marks about the President of the ANC that are posed by Mr. Zuma’s prosecution.

These are classic guerrilla tactics. How nice it would be if we could (also) focus some debate and attention on the question of whether Mr. Zuma is a morally and ethically sound person – regardless of whether he is ever convicted of any criminal offense. Why is it not possible to ask – without being called a ANC-hating, racist apartheid spy – whether we really want as a President of our country a man who, by all accounts, faces very serious criminal charges?

I have my suspicions why not: because that is an argument the ANC cannot easily win. Many people who voted for the ANC do feel uncomfortable with the ethical and moral probity of Mr. Zuma and many of those who are attacking our Constitution, the NPA and the judiciary secretly know this all too well. The one thing the ANC wants to avoid at all cost is to legitimize the concerns of this essentially honest and decent silent majority in South Africa. Hence the endless attacks not based on proven facts or sound legal principles, but on political expediency, thuggery and desperation.

“Political conspiracy” = “yes I am guilty”

Jul 10th, 2008
by Pierre De Vos.
33 comments

I have a new rule for deciphering the utterances of politicians. As soon as one says that he or she is the victim of a political conspiracy, I replace the words “political conspiracy” with the words “yes I am guilty”. The way in which politicians cry “conspiracy” when they are caught stealing our money is becoming tedious and laughable. Come up with something more original guys!

The latest example is our dear Minister of Sport, Makhenkesi Stofile, who was fingered for corruption in the Eastern Cape in a report of a Commission of enquiry appointed by premier Nosimo Balindlela and headed by respected Judge, Ronnie Pillay. The Daily Dispatch got hold of the report and published it today.

Stofile’s wife Nambitha is linked to two entities – the Triple Trust Organisation and the Anti-Poverty Foundation – which received a total of R760000 from the Premier’s Fund.

“Instructions to disburse funds from this account appear to have proceeded based on written instruction received from Premier Stofile,” said Pillay. He found that other companies apparently owned by Nambitha – Masakhane Security and Mpumalanga Construction – also received lucrative government tenders totalling R17.8m.

Other loans apparently to the Stofile family include R31500 to Naude Stofile for purchasing stock for Stofile Trading Store and Cafe in Idutywa; R900000 to Linda Michael Stofile to open a Spar supermarket in Alice; and an amount – with interest – of R455489 to Andile Stofile and his wife, Toliwe Laetticia Stofile, to purchase equipment for a funeral parlour.

It might well be that Stofile did nothing wrong and that he is innocent. I was prepared to hear his side of the story and then to see whether I thought the report might have gotten it wrong. After all judges sometimes make mistakes – one just have to read some of the decisions of John Hlophe to realise this. But then the Mail & Guardian reported tonight that Stofile rejected the findings of the report “with the contempt that it deserves” before continuing:

“I just want to assure the people of the Eastern Cape that just as previous attempts to tarnish my image failed, even this one will be exposed for the political conspiracy it is.“

Call me cynical, but it was right there that I started believing every word in that report. But our Minister is a bit slow. If he was a bit quicker on the draw he would have “pulled a Hlophe” (I am copyrighting this term!) and would have alleged that the conspiracy is the result of his tireless efforts to integrate sport and that the report was therefore all part of a racist plot by those people resisting transformation in sport. After all, Pillay is an Indian and therefore not really black. Aren’t Indians so to speak Chinese? Maybe he will think about that excuse tomorrow.

I would be more prone to give him the benefit of the doubt if he actually gave a real excuse and explained why these payments were legitimate. In the absence of such an explanation and in the presence of the “conspiracy” defense, I can only conclude that he is guilty as sin. From now on as soon as someone uses the conspiracy defense I will suspect that they are guilty of what they have been accused of. And if they point out how the process was flawed and how their rights were trampled on, without addressing the substance of the allegations, I will pretty much know that they did what they are accused of.

“Kill the bastards?” – no, not politicians, criminals

Apr 10th, 2008
by Pierre De Vos.
18 comments

Politicians sometimes make statements that are so astonishingly stupid and irresponsible that I have to check whether the report was not perhaps an April fools joke. A case in point is a statement reported to have been made yesterday by Susan Shibangu, the Deputy Minister of Safety and Security at an anti-crime imbizo in Pretoria West. Referring to criminals, she reportedly told the police that they should “kill the bastards if they threaten you or the community”.

You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect . . . I want to assure the police station commissioners and policemen and women from these areas that they have permission to kill these criminals. I won’t tolerate any pathetic excuses for you not being able to deal with crime. You have been given guns, now use them.

I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don’t miss. We can’t take this chance. Criminals are hell-bent on undermining the law and they must now be dealt with. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, they must be killed. End of story. There are to be no negotiations with criminals.

The constitution says criminals must be kept safe, but I say No! I say we must protect the law-abiding people and not the criminals. I say that criminals must be made to pay for their crimes.

This kind of statement might be popular with people suffering under crime, but it is both factually and ethically wrong for a Deputy Minister to make such a statement. It will also undermine respect for the Constitution and for the law and basically purports to give the police the right to be a law unto themselves.

Members of the executive (if we assume a lowly Deputy Minister is a member of the executive) have a duty to uphold the law and the Constitution and to create the impression that the police or anyone else is above the law is not acceptable. Unfortunately this is exactly what Ms Shabangu has now done and in the process she is misleading ordinary police men and woman and undermining the law and the Constitution.

It sounds as if she has spent too much time around Mr Jacob Zuma and now also has foot in mouth disease.

As the law and regulations lay down criteria for when police can shoot at and kill an alleged criminal, the police has a legal duty to adhere to these guidelines. A Minister or a Deputy Minister cannot override the law and for her to say that she will worry about the regulations and to purport to give permission to shoot and kill suspects is illegal and undermine the Rule of Law. She is inciting people to take the law into their own hands which might actually be a criminal offense.

Only Parliament can make a law and even then that law must comply with the Constitution. No matter what a Deputy Minister might say, members of the police are legally and constitutionally bound not to shoot and kill criminal suspects on sight. If they do, they should face murder charges because they would have taken the law into their own hands. A Minister has no power to override these basic legal and constitutional principles and to suggest otherwise is scandalous and misleading. It also undermines the separation of powers which explicitly requires Parliament and not the Executive to make laws.

As Mr Zuma and his supporters always remind us, the Constitution presumes that everyone is innocent until proven guilty and only a court of law can decide whether a person is a real criminal or not. For a minister to be seen to give permission to the police to shoot and kill people they think are criminals, is really nothing else but incitement to murder. As the law makes clear, suspects can only be shot and killed if they clearly threaten the lives of someone. One cannot shoot and kill a person if they threaten your belongings. To say otherwise is to completely undermine the law and our Constitution and to encourage the police to take the law into their own hands.

We have recently seen the spate of police brutality accusations leveled at the police and some have wondered why the police may be acting as if they are above the law. Now we know. Politicians in charge of the police are clearly encouraging the police to break the law and to assault and kill people who have never been found guilty of any crime in any court of law. For a Deputy Minister to do so is morally reprehensible and shocking. If the President wanted to send a signal that we all must respect the law and the Constitution (as he has often done in the past), he would have no choice but to fire Ms Shabangu for her idiotic and dangerous comments.

Some might say that the criminals have it coming and to kill a few of them would not really bother the rest of us. But who are these criminals? Today it might be a cruel hijacker, but tomorrow it might be you or me who happens to be at the wrong place at the wrong time when the police starts playing cowboys and crooks. The Minister will not worry about that because she has bodyguards to protect her from the police but the rest of us must be very afraid because if the police starts thinking they have permission to shoot and kill “real” criminals, it will not be long before they start shooting and killing those who are completely innocent.

Ms Shabangu’s statement must be condemned in the strongest terms and the Minister or the President should issue a rectification to make clear that the police may not legally shoot and kill criminals unless the life of a person is seriously threatened. Ms Shabangu should also be told that she is not above the law merely because she happens to be a Deputy Minister and that she cannot override the law or the Constitution.

She should be fired forthwith and redeployed to become South Africa’s third secretary of nothing in a godforsaken backwater of the world (Khazakstan perhaps?)? so that we never hear of her again. For gods sake, just keep her away from the police. They are dangerous enough as it is.

“Innocent until proven guilty” does not mean suspension of belief

Apr 6th, 2008
by Pierre De Vos.
12 comments

It is troubling that Kgalema Motlanthe, Deputy President of the ANC thinks (or at least claim that he thinks) that by criticising Mr Jacob Zuma, Barney Pityana wants to deny the “masses the right to choose their own leader.” Although he claims that he welcomes open debate, he seems to suggest that if one criticises the leader of the ANC one is somehow anti-democratic.

This is a monumentally stupid argument and I can only hope that Motlanthe did not really believe it when he wrote it because if he did, he is not the sharpest tool in the shed. Of course in a democracy there is absolutely nothing wrong with anyone criticising any politician – whether they were elected by 4000 ANC delegates at Polokwane or by 15 million South African voters at the polling booth.

To suggest otherwise is to suggest that once those 4000 people at Polokwane made their decision to elect Mr Jacob Zuma as President of the ANC, the other 40 million South Africans have no right to take part in a debate about his suitability to become President of the country. This would be deeply anti-democratic and quite unacceptable in a constitutional state like ours.

Motlanthe then goes on to criticise Prof Pityana for heaping scorn on Mr Zuma while the latter has not been convicted in a court of law.

If, like other citizens, Zuma is to be presumed innocent, then it is not correct to assign to him characteristics of corruptness, dishonesty and flawed moral conduct. There is no such thing as a partial presumption of innocence. A person is either presumed innocent, or not.

I respectfully think that Mr Motlanthe (like many pro-Zuma supporters) is misusing the constitutional principle that in a court of law an individual must be presumed innocent until proven guilty by the state to protect a flawed man. This right enshrined in the constitution is part of the fair trial rights of any accused and is based on the principle that no presiding officer must assume anyone guilty before the state has proven that guilt beyond reasonable doubt.

But the principle that in a court of law a person must be presumed innocent until proven guilty surely cannot and should not be used to shut up any debate in society about the moral character of anyone. Otherwise it would mean that we have no right to make any judgment about any public official’s suitability for office or about his or her morals unless that person has been found guilty of a crime.

That would set such a preposterously high bar for any criticism of a politician that it would undermine the very nature of our democracy. The absurd and dangerous logic of all this would be that we would not be able to say anything bad about Wouter Basson, PW Botha, Magnus Malan and all the other apartheid politicians who have never been found guilty of any crime in any court in the world because they are, after all, also “innocent until proven guilty”.

What Mr Motlanthe and other apologists for Jacob Zuma does not understand or does not want to admit is that there is a difference between being found guilty of a crime (for which one can be sent to jail for 15 years) and being found guilty in the court of public opinion for being stupid, or morally tainted. The former carries heavy penalties and therefore we can not lightly assume anyone guilty of a crime. The latter is a far more elastic concept and we do not need to cede our power to judges to tell us whether a person is morally dubious or not. We are perfectly capable of deciding for ourselves whether we think leaders are morally tainted or not.

What Mr. Motlanthe wants to do is to take away our power as citizens to debate and criticise contenders for the Presidency and to cede that power to judges who will only be able to make a pronouncement on the matter if they find that a person is guilty of a crime. This attitude is deeply disrespectful of our human dignity, which as the Constitutional Court has stated on numerous occasions, presupposes that we have moral agency and that we must be allowed to make up our own minds about who we are, how we want to live and what we think about issues of the day.

The fact remains, a convicted fraudster (Schabir Shaik) has admitted that he gave more than a million Rand to Mr Jacob Zuma. The fact remains that the highest court in the land has confirmed that Mr Zuma did favours for this fraudster after the money was paid. The fact remains, the highest court in the land has confirmed that Mr Shaik had solicited a bribe on behalf of Mr Zuma from an arms company. The fact remains, Mr Zuma has never specifically addressed these issues or given any explanation for why he took the money and why he did the favours. In fact, suspiciously like a real crook he has only darkly muttered about conspiracies, not knowing that for most reasonable people that sounds very dubious and tantamount to an admission of guilt.

None of these incontrovertible facts make Mr Zuma a criminal. But it does make him unfit for public office. Quite frankly, in my opinion it makes him unfit to staff the Home Affairs counter in Barracks Street. Nothing Mr Motlanthe or anyone else say can take away these facts. That is why they have to make arguments about “innocent until proven guilty” and mutter darkly about people not respecting the will of the 4000 delegates at Polokwane.

It suggests the moral bankruptcy on the part of Mr Zuma’s supporters and raise questions about their own morality and fitness to hold public office. If people like Mr Motlanthe really think the only standard for judging the moral character of a person is guilt in a criminal court, we are surely in very, very deep trouble.

I guess he does not really believe that though. He is just parroting these idiotic lines because that is the only way to try and defend the indefensible. Mr Zuma is a deeply flawed and tainted character – no matter what a criminal court may found about his guilt. To suggest that Mr Zuma is beyond criticism is to suggest that us ordinary people have no right to think for ourselves and to question our leaders.

Despite findings by the highest court seriously impugning the integrity of Mr Zuma, he has never once addressed the issues raised by the Shaik case and has never explained why he has taken money from Mr Shaik and then did favours for him. In the absence of any credible explanation we would be irresponsible not to question his integrity. The fact that he and his handlers in the ANC think that he can get away with this without giving any explanation to the public suggests a disregard for us ordinary people of the most profound kind.

The Zuma forces always talk about the infringement of his dignity but it is our dignity that is being affronted because we are being treated as people without any agency and without the right to think for ourselves.

Human Rights day, police brutality and transformation

Mar 20th, 2008
by Pierre De Vos.
19 comments

Maybe I am turning into an old fogy, but I could not really get very upset about the alleged brutality of the police when they raided several bars in Stellenbosch at the beginning of this month. It is true that the video’s on YouTube clearly shows that the police acted in an extremely high handed and even violent manner, but compared to other incidents of police brutality this was mild stuff.

The only reason why this even even made it into the paper was because those affected were mostly rich white kids with cellphone cameras, the same people who buy and read the mainstream newspapers who reported on the incidents.

For example, it is shocking to read the following summary of police brutality in the 2007 report from Amnesty International:

Torture and misuse of lethal force against crime suspects continued to be reported, in a context of high levels of violent crime and police fatalities. Corroborated cases involved members of the South African Police Service (SAPS), particularly from the Serious and Violent Crime Units (SVCU), torturing suspects with suffocation and electric shock devices, as well as kicking and beating suspects. Several detainees died as a result. Interrogation sessions sometimes took place in informal locations. Torture equipment was found on the premises of the Vanderbylpark SVCU after a court-ordered search.

After reading this report, and recalling earlier brutal action by the police against Landless People’s Movement activists during the last election and the raid on refugees at the Central Methodist Church in Johannesburg, the alleged assault by police of some students in Stelenbosch, although abhorrent, seems perhaps less important.

However, as we approach human rights day it might be appropriate to ask why some members of our police still behave in this way despite the fact that the Bill of Rights guarantees for everyone the right to human dignity, the right to freedom and security of the person (which includes the right not to be tortured) and the right to bodily and psychological integrity.

In the apartheid years the police had, what one British report memorably called, a confessional style of policing: they caught people who they thought were “troublemakers”, tortured them until they confessed, and then secured convictions on the basis of such confessions.

Some would say that given the extremely high levels of crime in South Africa, there is nothing wrong with this approach. After all, criminals are brutal and kill many police officers every year, so what is wrong with the police “retaliating” by roughing up or even torturing a few criminals.

Ironically, some of the same people who argue like this would remind us, sometimes vociferously, that Mr Jacob Zuma is innocent until proven guilty. But if he is innocent until proven guilty, so is every single person ever caught up in a police raid or ever tortured by the police. When we allow police – through our active support or through our silence – to abuse the rights of some citizens we are inviting them to abuse the rights of every single one of us.

One of the greatest problems, as I see it, is the way in which the transformation of the South African Police Service (SAPS) has been handled. Given the nature of our transition to democracy the state was never overthrown and the same state institutions were merely taken over by the new government. Admirably the ANC government took some brave steps during the transition in an attempt to transform the SAPS and to instill a human rights culture in the Police.

But in the tussle between the old apartheid police culture and the to-be-established human rights culture, the old culture won hands down. After all, it is far easier and emotionally more satisfying for the understaffed and demoralised police to throw their weight around and to “get bacK’ at people they think are criminals, than it would be to actually do the hard police work required of building sound cases that would stand up in court.

And thus, as the new leadership found out, it was far easier to replace the white leadership of the SAPS with a black leadership than actually to change the police culture. And once the faces changed, talk of the real transformation of the police subsided and police brutality increased once again – although the SAPS is, of course, not nearly as bad as the deathly apartheid police.

At the heart of this story, I think, is a lesson (I always wanted to be a preacher so here goes!) of how difficult it is to effect the real transformation that the Constitution requires of our society. Changing the colour of the faces in charge of an institution does not automatically change all the bad habits of that organisation and may even give new legitimacy to those habits and to the institution.

Even where real efforts are made to change the very character of the state to bring it into conformity with the “letter and spirit” of the Constitution, these efforts are often only partially successful and those spearheading them become demoralised and give up. Then suddenly transformation becomes nothing more than changing white faces with black faces while the authoritarian culture of the institution essentially remain in tact.

On human rights day maybe we should think again about the kind of deep transformation of our society and its institutions that the Constitutional Court sometimes says our Constitution demands of us. We should ask why this kind of transformation seems to have stalled on many levels and in many institutions. We should, perhaps, revisit our use of the transformation mantra and should not bandy it about merely (although that is important) to mean the changing of the racial composition of the people staffing the various institutions in need of transformation.

I am not too optimistic that “real” transformation will happen in the SAPS soon, because the authoritarian and brutal police culture is too deeply rooted, the clamour from the public to do something about crime too loud, and the dangers faced by police officers every day too severe to make this possible. Which means we face more and worse police brutality in the future that would make complaints by Jacob Zuma about the abuse of his rights by the Scorpions look laughable and even absurd.

Zuma’s double standard

Jul 17th, 2007
by Pierre De Vos.
3 comments

Is it just me or has Mr. Jacob Zuma once again demonstrated spectacular double standards regarding the criminal justice system? In an interview with the SABC last week Zuma argued that criminals seem to have too many rights and that they should not be let out on bail as easily as they are.

But I always thought Mr. Zuma was of the firm belief that every person is “innocent until proven guilty? He has said so often enough.

But if one is innocent until proven guilty one should surely not be locked up until one is convicted of a crime – unless it is very clear that one poses a danger to society? And that is exactly what the rules on bail (properly interpreted) now provides for.

Why tighten up bail laws unless one is of the view that, yes, all people are innocent until proven guilty but some are more innocent than others.

The problem with this mantra, of course, is that unless one is called Jacob Zuma or is a politician with strong connections to an influential political party, one is never innocent until proven guilty.

Dina Rodriguez was never thought of by Mr. Zuma or anyone else as innocent until she was convicted. And let’s face it, I would be rather surprised to hear that Mr. Zuma has always been of the firm view that Wouter Basson was innocent and remains innocent because he was never convicted of a crime.

This is why I have such a bee in my bonnet about the way this principle – which is based on the notion that one must be presumed innocent by a court of law until the state has proven the case against one – is abused by politicians.

Mr. Zuma and others have been using this important legal principle to try and stop ordinary people from making value judgments about their character. In effect they claim that our standards for judging a politician must be lowered to such a degree that we can only criticize them in any way after they have been convicted of a crime.

But there is no legal reason why members of the public – as opposed to judges hearing a case – cannot make adverse assumptions about the character of, say, Mr. Zuma or Judge President John Hlophe or Robert McBride.

By indicating that bail conditions should be tightened for others who are also “innocent until proven guilty”, Mr. Zuma is really showing his hand. What he believes in (like most politicians caught with their hands in the till or their pants down – is that he is innocent even if proven guilty.

Criminals on the other hand – those who were charged correctly – must be locked up even before they are convicted.

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