Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
8 February 2011

On irony in politics

For any person with a well-developed sense of irony and an interest in politics, South Africa remains a wonderful source of entertainment. Two examples from the past week illustrates this point.

The hullaballoo about President Jacob Zuma’s remarks that ANC voters will go to heaven while opposition voters is choosing “that man who carries a fork … who cooks peoples” is a case in point. Given the fact that Christian religion teaches (rather strangely) that marriage is exclusively between one man and one woman and that sex is a holy expression of God’s love which must only occur within a monogamous marriage, and warns individuals against severe punishment and even banishment from heaven if they transgress these rules, our President’s remarks seem rather ironic.

If one takes this kind of thing seriously (I don’t, but many devout Christians do), one might argue that due to his rather adventurous private life our President is uniquely unqualified to speak on matters of religion. After all, in his private life President Zuma breaks many of the rules which Christianity takes rather seriously. Yet, that has not stopped our President from playing God and from declaring that only ANC members will go to heaven while opposition voters will go to hell.

Perhaps because I am not a religious person and because I do not take these beliefs too seriously, I am more amused than outraged by the President’s remarks. In terms of religious doctrine, one of the biggest “sinners” (once again, not a term I would ever use without irony) in South Africa is implying that he has a direct line to God and is telling us that he knows who will get into heaven and who will go to hell and is doing so with a straight face — despite the fact that concepts like heaven and hell are about as easy to believe in as the promises of Johannesburg mayor Amos Masondo that the billing problems of that city will be sorted out soon.

I am struck by the irony of all of this. The sheer chutzpa of President Zuma is also admirable.  Besides, I am not sure why opposition politicians and newspaper editors are complaining so much about this bizarre statement by our President. There is a long and proud tradition across the world of politicians using and abusing religion in the most blatant and crude manner to try and win a few votes. Anyone who has ever followed an election campaign in the USA would know what I mean. President Zuma’s statement reminds me of Sarah Palin, who also seem to believe that she has a special knowledge of God who, after all, is a Republican.

News that Police Minster Nathi Mthethwa has approached the Constitutional Court to overturn a Supreme Court of Appeal (SCA) decision that requires an offence under investigation to be mentioned in a search warrant for a warrant issued in terms of the Criminal Procedure Act to be valid, also highlights the bizarre change in attitude of the Zuma inner circle to criminal procedure questions.

Apparently the Ministry fears that the criminal justice system will be thrown into turmoil if the Constitutional Court does not, in effect, reverse its decision in a case in which President Zuma himself was a litigant. If one required the offence to be mentioned in a search warrant, so the argument goes, vast numbers of search warrants may be declared invalid. How could one possible pursue criminals if the law was so demanding and required law enforcement officials to be so precise and accurate when they applied for search warrants?

In his written arguments before the Constitutional Court, the Minister argues that the failure to specify an offence only applies in the National Prosecuting Authority (NPA) Act and does not cover warrants issued under the Criminal Procedure Act.

Of course, the irony here is that President Jacob Zuma held a very different view about the precision of search warrants when he was a criminal defendant and not the President. When Zuma was fighting to stay out of jail so that he would not suddenly have to “fall terminally ill” to escape a prison sentence after being convicted of corruption, his legal representative challenged the lawfulness of search warrants issued by the NPA to gather evidence at Zuma’s home as well as at his attorney’s office because, so it was argued, these warrants were too vague and because they therefore fundamentally infringed on his rights.

The majority of the Constitutional Court in the famous case of Thint (Pty) Ltd v NDPP; Zuma v NDPP ruled that a warrant issued in terms of the NPA Act should state at least the following, “in a manner that is reasonably intelligible without recourse to external sources of information”:

The statutory provision in terms whereof it is issued; to whom it is addressed; the powers it confers upon the addressee; the suspected offences that are under investigation; the premises to be searched; and the classes of items that are reasonably suspected to be on or in that premises. It may therefore be said that the warrant should itself define the scope of the investigation and authorised search in a reasonably intelligible manner.

Despite these rather stringent rules (some have argued that the Constitutional Court’s requirements for a valid search warrant set the bar too high, given the lack of training and general bumbling of some of our law enforcement personnel), the majority of judges of the Constitutional Court found that the search warrants were valid. Supporters of Mr Zuma argued that the Constitutional Court judges  — you know those men and women who were described as counter-revolutionaries for not finding in favour of Mr Zuma – ruled in the way they did because they hated Zuma and may have been part of a conspiracy. No one asked whether it would throw the entire criminal justice system in turmoil if the Court found in favour of Zuma and demanded extreme precision in the formulation of search warrants. Instead they argued that his human rights were grossly infringed because the search warrants were vague (although they did stipulate the offences under investigation).

Now that the SCA has confirmed that the strict rules regarding search warrants did not only apply to search warrants issued in terms of NPA Act but also in terms of the Criminal Procedure Act (and of course, now that President Zuma does not have to worry about search warrants anymore) his government is taking a position that is diametrically opposed to that taken by Zuma when he was a criminal defendant.

You see for our government, one set of principles should apply when the police or NPA deals with “ordinary” criminal cases and an entirely different set of principles should apply when they deal with a criminal case relating to a leader of the majority party. The greatest irony is of course that Minister Mthethwa’s stance might find favour with many of the people who previously believed that Mr Zuma’s rights were being violated in a grossly unfair manner. Given the fact that many police officers are poorly trained and that the Police Service (constitutionally it remains a Police Service so I refuse to call it a Police Force) have bungled many search and seizure warrants, and given the high crime rate, many people (but not me) would argue that the requirements for search warrants should be relaxed.

I am of course not saying that Mr Zuma and his lawyers should not have made the arguments he did. These were good arguments to make to try and prevent the NPA from using the hundreds of thousands of documents seized at his home in their relentless (but not very well-executed) pursuit of the President to be. Those documents might have implicated Mr Zuma and might have made a conviction more likely so it was imperative to keep them out of court. But it does go to show that one’s views can change rather dramatically once one stops being a criminal defendant and one becomes the President of the government who has promised voters that the government would do something about crime.

What I am wondering about is whether President Zuma expressed any view on this appeal when it was discussed at cabinet and if so, what he might have said. Did he continue arguing that vague search and seizure warrants grossly infringed on the rights of criminal defendants or did he change his position? Sadly because of cabinet confidentiality, we will never know.

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