by Professor Brian Williams
Within our legal system, serial killers, femicidal murderers, child rapists and paedophiles have the right to appeal conviction and sentences.
In the Constitutional Court (Case: CCT 52/21 of former president Mr Jacob Zuma), the fundamental right was removed by a process that was calculatedly chosen by the apex court.
After confirming him guilty of a criminal offence, Zuma was not invited to make mitigation submissions – a right afforded to child molesters, child murderers and the most evil perpetrators among us. Worse, his pending incarceration was based on an “imprisonment without trial” process.
How can Zuma, an accused person found guilty of a “contempt of court offence” have less rights than murderers and child molesters? The court, in its majority ruling, stated self-evidently that “this judgment indeed cannot be appealed” (para 79). Is there authentic equality before the court, in this instance?
How can there be such raucous public celebration of this antagonistic contradiction which lacks a crucial justice and peace balance?
Judgment: Former President Jacob Zuma is guilty of the crime of contempt of court and is sentenced to an unsuspended period of 15 months’ imprisonment. (Secretary of the Judicial Commission of Inquiry into Allegations of State Capture v JG Zuma and Others) pic.twitter.com/BFVouUfNEi
— Constitutional Court (@ConCourtSA) June 29, 2021
Zuma was accused of “contempt of court” and the “accusation”, however clothed, triggered constitutional obligations as set out in s12 and s35 of the Constitution. Section 12, among others, deals with the “right to freedom and security of person, including the right not to be deprived of freedom arbitrarily or without just cause”.
Section 35 imposes constitutional rights, which grant an accused facing prosecution and imprisonment, the “right to a fair trial” which includes “a public trial” and to be “present at such a trial”. The apex court has the power to grant Zuma the right to a trial but chose to deny him s35 (c) rights.
I agree with the minority judgment of Theron J and Japhta J which disagreed with the majority when it stated that “it is unconstitutional, to the extent that it violates sections 12 and 35(c) of the Constitution to order punitive committal for civil contempt in motion proceedings, where no remedial or coercive relief is granted” (para 143).
The Justices postulated that “in seeking a punitive order… it trammels over the constitutional rights of alleged contemnors (including Zuma)” (para 143).
The State Capture Commission indicated that “it would lay criminal charges against Mr Zuma… the Commission has not laid criminal charges… for failure to comply with the Commission’s summonses and directives” (para 256).
The Commission’s decision to argue for “imprisonment without a trial” and without the “right to appeal” a conviction and sentencing, was made subsequent to its public statement.
The Commission, chaired by Deputy Chief Justice Raymond Zondo, among others “argued that only a punitive order of unsuspended committal would be appropriate”. (Para 257). After ignoring its own “criminal charges” announcement, the apex court as the first and final arbiter was approached. The matter was referred to the Deputy Chief Justice’s colleagues who are also his subordinates. Inherent perceptions of bias exist.
From July 1 this year, Justice Zondo will be the acting chief justice of the Constitutional Court.
The end date of the commission is irrelevant as criminal processes can function independently of the commission. To deprive Zuma, a 79 year-old great grandfather publicly known to have significant medical problems of his liberty, during a raging Covid-19 pandemic and under legally questionable circumstances, is unreasonable.
He is the former president of the Republic of South Africa. He served 10 years on Robben Island as part of his sacrifice to achieve freedom. Where is the humanity in this “imprisonment without trial”?
The majority judgment postulated that “this is not a conventional criminal trial” (para 65). The accusation is that Mr Zuma committed a crime but he is not an “accused” person. This semantic argument was used to deprive Zuma of s35 rights. This is offensive, irrespective of how fancy the legal argument is.
I was active in the liberation struggle for peace against the injustice of the apartheid regime and was detained twice and charged in terms of the Internal Security Act. We did not struggle so that people in a free South Africa can be “imprisoned without a trial”.
Political martyrdom must be avoided and justice and peace ingredients must be factored in rulings, so that present and future destructive conflicts are avoided. As Catholic emissaries of peace, my family and I stand opposed to the judgment, which does not speak for us.
The apex court is not immune from critical examination and this ruling cuts into the arteries of our constitutional democracy. The noble cause of peace is served when we question those with power.
Wars can start when healing and critical words have lost the ability to influence the direction towards peace. The worst among us must receive the best constitutional protection, not only to demonstrate the nobility of our human rights ideals.
* Professor Brian Williams is Visiting Professor in Peace, Mediation and Labour Relations: University of the Sacred Heart, Gulu, Uganda; chief executive: Williams Labour Law and Mediation; Thought Leader Award Recipient for 2018 (Black Management Forum); International Award-winning poet: seven books published.
** The views expressed here are not necessarily those of Independent Media.
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