Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
25 October 2008

Innocent until proven guilty – but politically tainted

I was struck by the news that Mnyamezeli Booi, an ANC MP facing Travelgate charges who has refused to negotiate a plea bargain and insists on being tried to clear his name, has been made Chief Whip of the ruling party. Several positions became vacant when a number of portfolio committee chairs were appointed Ministers or deputy Ministers last month, following a spate of resignations after Thabo Mbeki was recalled as President.

A Cape Times report (not available online) says Booi succeeds Nathi Mthethwa – who is now Minister of Safety and Security. He was the only MP who refused to enter a plea bargain agreement with the state after being implicated in the Travelgate fraud scandal. He insisted he was innocent and was determined to fight the charges in court. His trial is to begin in February. He has, however, recused himself from all the public hearings and deliberations on the Scorpions Bills. Booi’s promotion to Chief Whip yesterday coincided with the adoption in the National Assembly of the Bills.

Mr. Booi is of course entitled to be presumed by a court to be innocent until proven guilty. I also concede that commentators like myself or the media should not treat Mr. Booi as if he has been found guilty of any offense. He might well be acquitted and he is surely entitled to the benefit of the doubt.

Yet, I find it outragous that the ANC has decided to appoint Mr Booi as Chief Whip of his party. This is not because Mr. Booi might turn out to be a crook and a thief as no one knows whether he is guilty of the offense for which he is being charged or not. Only a court can make that decision.

But this appointment seems like the ANC is sending a big up yours to the electorate, saying that they do not care what impression they may create with us voters and that they will do as they see fit. In an ordinary democracy where a governing party fears losing its majority it would NEVER appoint a person facing such serioius criminal charges to such an important position.

This is because such a move – no matter how unfair it might eventually turn out to be to the individual involved – will send the signal that the party is not taking charges of corruption seriously and is in fact rewarding an individual for corruption.

There is a difference between perception and the facts established in a criminal trial. A political party who respects the electorate is sensitive not only to the latter but also the former. By appointing Mr Booi, the ANC has signaled that it does not really care what we think and that it is not afraid to send a signal that it would reward corruption in its ranks.

In the long run such an arrogant move will erode confidence in Parliament and in the Party. It is deeply disrespectful to one of the pillars of our democracy – the Parliament – and also unfair to Mr Booi whose trial will now take on added significance in the eye of the public.

The ANC should be careful because in politics once a master narrative takes hold it is very difficult to shake off. Now with its leader, Jacob Zuma, facing corruption charges and the whole Travelgate scandal, they are running the risk of implanting the idea in the minds of even its loyal supporters that the party is corrupt or condones corruption.

In the long run, this will be disasterous for the party. I wonder who made this decision? Jacob Zuma? Gwede Mantashe? Whomever it was, it was an unwise political decision. The person who made it should be fired.

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