Last year I spent a few hours in prison. Not as a guest of the state, I should add, but to accompany students on a study tour. Contrary to popular belief, a prison is not a great place to spend one’s life. It’s cramped and dark, the food is foul, one has no privacy and one’s dignity is severely compromised. Besides, I don’t think anybody looks their best in an orange prison suit.

For the state to send somebody to prison is therefore a very serious matter indeed. That is why our Constitution safeguards the rights of accused persons and why the state has to prove the guilt of an accused beyond reasonable doubt. This is an extraordinarily high hurdle for the state to overcome, and with good lawyers and enough money many guilty individuals are acquitted. Some accused are also acquitted because the police bungle the investigation or because they really are innocent and were framed by the police.

Because sending someone to prison is such a drastic infringement of an individual’s liberty and rights, our Constitution also requires that every individual be given a fair trial before an impartial and independent court where an accused will be presumed innocent until such time as the state has shown — once again, beyond reasonable doubt — that the accused is guilty of the crimes of which he or she is being accused.

This is also why Jacob Zuma — like every other South African, whether rich or poor, black or white, politically connected or not — should never be presumed to be guilty of a criminal offence, by a court, by the media or by ordinary citizens, until a court of law has found him guilty. To hold otherwise would be to undermine one of the basic tenets of our constitutional state based on the rule of law.

Zuma — and the ANC leaders who support him in his dark hour — is therefore correct to insist that no one should assume that he is guilty of an offence merely because he was accused of wrongdoing by the NPA. They are correct, also, that he should not be treated as a criminal merely because he is an accused in a criminal trial.

However, does this mean that we should be prohibited from making any value judgement about Zuma’s character and his fitness for high public office until such time as he is either acquitted or convicted by a court? I think not.

When we make value judgements about an individual — especially individuals in the public sphere — we are not required to establish beyond reasonable doubt whether any allegations of wrongdoing by that person are true, just as we are not required to establish beyond reasonable doubt whether an individual is a good or bad person, a kind or nasty person, a good or bad leader, before we decide whether we want to befriend that person or elect him or her to high public office.

A provocative example will suffice to illustrate my point.

A few years ago, Dr Wouter Basson (dubbed “Dr Death” by the media) was charged with very serious crimes, including murder, for his role in assisting the apartheid military in various “dirty tricks” campaigns. Basson was acquitted and therefore not sent to prison. Evidence presented in court and widely reported in the media suggested that Basson was not a man of particular integrity — to put it mildly.

Because of this evidence, most sane South Africans formed an unflattering opinion of Basson; I am sure if he were ever to run for public office, there would be — rightly — an outcry that such a man could even think of sitting in Parliament. Although a court found there was not sufficient evidence to send him to jail, evidence presented in court allowed ordinary South Africans to make a value judgement about his character. This is how we always form opinions of public figures.

Very few South Africans would say that because Basson was acquitted, he is the kind of man for whom we would fight and kill, the kind of man that should lead South Africa as its president. I, for one, would be freaked out to wake up from an operating table to find old Wouter bending over me with his scalpel. Quite frankly, I would not even want to have him over to my house for a cup of tea.

This is because the threshold for everyday value judgements about public figures is much lower than the threshold employed by a criminal court. If it were otherwise, it would be almost impossible to form any opinions about public figures or to make any ethical value judgements about the character of any politician.

I happen to think there is no moral equivalence between Wouter Basson and Jacob Zuma. Zuma spent several years on Robben Island and paid a high price for his fight against apartheid and is — in my opinion, at least — of much higher moral character than Basson. I would love to have Zuma over to my house for a cup of tea. He looks like a fun guy and he would have such interesting and inspiring stories to tell about his time on Robben Island and in the ANC in exile.

But Zuma is an accused person in a criminal trial. The highest court in the land has confirmed that he received money from a fraudster and then did favours for that fraudster, that he met arms-deal representatives who then paid him a bribe via the fraudster, and that he lied to Parliament about this.

All this does not make Zuma guilty of any criminal offence. However, in the absence of any plausible explanation by Zuma about these findings, it does make him, in my opinion, unfit for high office. This does not mean I am presuming he is guilty of the charges brought against him. It merely means that given all the evidence presented by the state and reported in the media, and given Zuma’s own lack of explanation, I have made a value judgement about his character, much in the same way that I made a value judgement about Wouter Basson.

Those who defend Zuma and utter dark threats to all and sundry about killing or dying for him seem to conflate criminal guilt or innocence with this other kind of judgement — namely whether, in the absence of any plausible explanation by Zuma, any of us should consider him a good, trustworthy, honest man worthy of being president of South Africa.

Because Zuma clearly has a real case to answer and because all the facts known to us point to his being a deeply flawed man, they want to force us not to form an adverse opinion about him before a court has found him guilty. But this is not how human beings operate outside of a criminal court setting. We make value judgements about people based on available evidence and, so far, it’s not looking good for Msholozi.

I suspect that is also why defenders of Zuma are attacking the courts and the NPA and making lengthy procedural arguments in his defence. They want to bully us into suspending our ordinary common-sense way of judging an individual’s character and wish for us to adopt a standard that is not workable because it is far too high and only fit for a criminal court that must decide on whether to send a poor man to jail for 15 years.

Of course, Zuma may well prove us wrong. He may at any time produce plausible explanations for taking the money from Shaik, for meeting with the arms-company representatives, for lying to Parliament. Sadly he has not done so. Instead, he has muttered darkly about conspiracies without addressing the real concerns presented by the conviction of Shaik and by his prosecution. This silence, more than anything else, makes it very difficult not to conclude that Zuma — while not convicted of any crime — is not a suitable candidate for the president of the ANC or South Africa.


  • Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics, including gay rights, the right to equality, social and economic rights, and affirmative action. Since October 2006 he also publishes a blog, Constitutionally Speaking.


Pierre de Vos

Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics,...

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