As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
This is such a grave charge that one should be careful to make it. In the past President Mbeki has always formally shown great respect for the Constitution and the law and one should not assume that he has abused his power. If it were to be true it would constitute a grave constitutional crisis because the President would have interfered with the working of the prosecuting authority and would have prevented it from exercising its powers “without fear favour or prejudice” as guaranteed by the Constitution.
It is therefore absolutely imperitave that the the President speaks to the nation immediately to dispell these ugly rumours. Every day that he allows the rumours to swirl, is a day in which we are forced to come closer to the conclusion that our President is not a true constitutionalist and that he would be prepared to abuse his power to interfere with the workings of the criminal justice system. This would confirm all the conspiracy theories bandied about by the Zuma supporters and could easily set us on a very dangerous path towards disrespect for the Rule of Law.
If the rumours are all untrue and the President assures us accordingly, then the harm could be minimised. If he fails to dispell the rumours, then he would at best have shown utter contempt for both us, the electorate, and the constitution which requires him to uphold and protect its provisions. His silence is undermining the constitution and our respect of it.
As I am out of the country (in Amsterdam) I might be missing something – why are people not more upset, toyi-toying in the streets, storming Parliament? – but it seems to me the continuous rumours is a real disaster and a real crisis for our young democracy. It is poisoning our political system and may do it irreparable harm because it will make us distrust our leaders and the system. If our Presidnet cannot see this, or if he thinks that he does not have to deal with it, he is not worth the name of President.
Speak to us, Mr President. We voted you into office and you owe us an explanation.