Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
18 November 2010

There is no right to be presumed innocent

In South Africa there seems to be one set of rules for politicians and another set of rules for the rest of us. How else to explain the statement of Public Services and Administration Minister, Richard Baloyi, that there is a growing chance the government will change the law to stop the practice of suspending officials on full pay for long periods when they are charged with misconduct or corruption?

You need to look at the provision for the suspension with pay as it is now. You might want to agree that before you suspend a person a preliminary kind of investigation is carried out. We need to assess the prima facie case. So you look at the merit of that … when does it merit suspension, what is the seriousness of this case.

Yet, when a politician is charged with corruption — after an investigation and after the NPA had concluded that there was a prima facie case against the politician that needed to be answered — nothing happens to that politician and we are told that we have a duty to assume that the politician is as clean and honest as Archbishop Desmond Tutu.

Take the case of John Block, ANC Northern Cape chairman and finance MEC. After his arrest, ANC secretary-general Gwede Mantashe said the party will not ask Mr Block to step down from his party position for the duration of his criminal trial. He further said it was the prerogative of Northern Cape Premier Hazel Jenkins to act in regard to Mr Block’s position in that province’s cabinet. Ms Jenkins has announced that she is fully behind Mr Block and will not suspend or fire him.

The reason given for this cowardly lack of action by both the ANC and the Premier against Mr Block was that he had a right to be presumed innocent until proven guilty and that it would be unfair to suspend or fire him. Yet every day officials are suspended (at the moment still on full pay) even though they had not been found guilty of committing any crime or breaching any rules.

In any case, it is utter nonsense to claim that a person has a general right to be presumed innocent until found guilty by a court of law. Section 35(3) of the Bill of Rights states that:

Every accused person has a right to a fair trial, which includes the right… (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

This means that every individual has a right to be presumed innocent by the court. This is part of an accused persons fair trial rights. A magistrate or judge who hears the case cannot assume that an accused is guilty merely because he or she is being prosecuted by the state.

This section does not bind those of us who are not going to decide on the ultimate guilt or innocence of an accused. It might, of course, be irresponsible for any of us to conclude that someone is a crook merely because he or she has been charged by the state. Although we might point out that there is a prima facie case against the accused (otherwise he would never have been charged), it might be morally wrong to assume the person is guilty, especially if we are not familiar with the evidence on which the decision to charge the accused was based.

It might also be risky to state that someone is a crook before he or she has been convicted because if that person turns out to be innocent or if the person is acquitted on a technicality, that person might be able to sue us for defamation if we had called him or her a crook.

But where we are familiar with the evidence (say, because the evidence was ventilated in another court case), and where we are brave enough to take the risk of being slapped with a defamation suit, we have every right to call someone a crook – even when that person has not yet been convicted of a crime.

The fact remains, where a person has been charged, the NPA is saying that there is a prima facie case against that person and that there is a strong suspicion that the person is a crook. Only the presiding judge will however be able to conclude whether the evidence show beyond reasonable doubt that the person is indeed a crook.

But as the Constitutional Court pointed out in the Sandersen case, where a person has been charged with commiting a criminal offense, that person has inevitably been tainted and a dark cloud hangs over that individual’s head. This is one of the unfortunate effects of being charged with a criminal offense. Even if one is eventually acquitted, a degree of suffering would have ensued.  In any event, a strong suspicion will linger that the person is a criminal and that is why charging a person can be such a grave thing to do.

Only a judge can remove that dark cloud by acquitting the accused. This is of course the problem with our President who took money from a convicted crook and did favours for that crook and was eventually charged with corruption. As he was never acquitted, we will never know whether President Zuma had the intention to be corrupt when he took money form that crook and did favours for that crook. We will always wonder whether our President was a crook himself or not. We will have every right to wonder about it and our President does not have the right not to have us wonder about his possible crookedness or not.

Section 35(3)(h) of the Bill of Rights cannot miraculously wipe out such serious suspicions against any politician (or anyone else, for that matter), whether it is John Block, Jacob Zuma or Masizole Mnqasela, a senior Member of Parliament for the Democratic Alliance (DA) charged with rape. In the interest of open and accountable government, such politicians have a duty to step aside until such time as they are either convicted or acquitted by a court of law who — unlike us ordinary folks — have a duty to presume that these politicians are innocent until the state has convinced the court that they are not.

This is the principle that applies to public officials who are suspended from their jobs. Why does the same principle not apply to politicians? Well, the answer is probably that politicians are the one’s who make and apply the rules and they therefore make and apply the rules so as to give themselves a special status and to claim for themselves a special “right” which does not exist in our Constitution.

Mr Block is the MEC for Finance in the Northern Cape, for goodness sake. He is in charge of the Province finances. The NPA claims that it has sufficient evidence to convict him of serious crimes of dishonesty. How can us ordinary people trust this man to deal with the Finances of the Northern Cape in an honest manner when such a dark cloud hangs over his head? The answer is we can’t and we have no duty to suspend all judgment until such time as a court either confirms the suspicion which have been created that Mr Block is a crook or clears his name.

He should step aside forthwith — along with all the other politicians who have been charged with a crime but have not yet been convicted or acquitted.

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