Taking refuge in a political fog

Politics touches the judicial process, as it does every aspect of modern life. No democracy has managed to isolate its judiciary entirely from the sometimes tawdry taint of legislative and administrative processes which, by their nature, can be both political and partisan.

Nor has any democracy yet successfully quarantined judicial appointments from political influence. The controversial selection of Western Cape Chief Justice John Hlophe springs immediately to mind. So too does the fact that Britain’s top judicial posts — Lord Chancellor, Attorney General and Solicitor General — are all political appointments.

No democracy has yet prevented political factors from influencing who is to be prosecuted. Think of the decision to proceed against a sacked Deputy President Jacob Zuma on minor fraud charges, while simultaneously declining to prosecute anyone implicated in the multimillion-rand corruption accompanying the arms deal.

In similar vein was the legal justification for the Iraq invasion that former prime minister Tony Blair served up before the UK Parliament. This flawed opinion was cooked up, it now transpires, with an attorney general in craven thrall to his political masters.

All of which makes the British media furore around South Africa’s extradition application for Shrien Dewani, accused of the contract killing of his young Swedish bride while on honeymoon in Cape Town, at turns laughable and infuriating.

The Dewani defence’s claim — to be weighed at next month’s London hearing — that he would not get a fair trial in SA is the desperate but understandable manoeuvring of a man who does not want to be in the dock. What does smack of hubris, however, is the UK media’s jingoistic and racially tinged portrayal of SA as a banana republic.

It is a view apparently shared by Paul Hoffman SC, of the Institute of Accountability in Southern Africa (IASA). While the opposition Democratic Alliance’s justice spokesperson, Dene Smuts, describes as “deplorable” Hoffman’s views that Dewani has stacked against him factors that “are not conducive to an impartial hearing”, and IASA itself as “a classic case of one man with a fax machine”, Dewani’s legal team will undoubtedly be rubbing their hands in glee.

Hoffman gives the example of Fred van der Vyver, who was charged with bludgeoning his student girlfriend to death with a hammer, but acquitted. He is now sueing for R46-million, alleging malicious prosecution and that the evidence against him was fabricated by the police.

What Hoffman glosses over is that ultimately the judicial system worked and Van Der Vyver never went to jail. Contrast this with Britain’s so-called Guilfdord Four and Maguire Seven, sentenced in the 1970s for Irish Republican Army bombings.

Repeatedly denied leave to appeal, they served 14 years before journalistic exposés of faked evidence and coerced confessions forced a review. The convictions were overturned.

Similarly, the Birmingham Six were sentenced to life terms for IRA bombings. They spent 17 years in jail, despite media exposés of fabricated evidence and forced confessions, before their third appeal succeeded.

Unfortunately such miscarriages are not unique and can occur anywhere. But in neither SA, nor the UK, do occasional case-specific abuses invalidate the entire judicial process.

The extraordinary thing about the SA judicial system is not the systemic problems that Hoffman catalogues, but that despite these it remains internationally respected, even emulated. SA’s judges are not political apparatchiks who deliver their judgements to government prescript, not even to “protect” the SA tourist industry, as the Dewani camp avers.

If extradited Dewani will face as equitable a process in SA as he would in Britain. Oh, and if found guilty, he is even likely to find the appeal process more readily accessible than back home.