Zuma can be prosecuted, even as president

The submissions being made by the senior counsel for the president in the Pretoria High Court are, in my humble opinion, wrong and need to be clarified.

Kemp J Kemp SC

The counsel for President Jacob Zuma, Kemp J Kemp SC, has again stated that the Democratic Alliance could not force the director of public prosecutions to prosecute President Jacob Zuma because it was unconstitutional to prosecute a sitting state president.

Kemp argued that the DA could not have any legal standing “to seek an order that a state organ must act unconstitutionally by reinstating the prosecution”.

As evidence he suggests that : “Mr Zuma is the head of the executive and of the armed forces … one arm of the executive cannot act in a manner that paralyses another arm of the executive.”

That if Zuma was prosecuted, he would be required to sit in a court instead if doing his duties, such as appointing judges. He would effectively be prevented from exercising his powers.

Unconstitutional

In truth it is unconstitutional to suggest that a sitting president cannot be prosecuted.

As stated by Professor Pierre de Vos, who occupies the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town and is one of, if not, the leading expert on constitutional law :

“As yet I have no firm views on whether the President and the NPA will be successful with this technical argument about the right of the DA to bring the review application. There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive. What I do know is that the assertion made by President Zuma’s lawyer that he cannot be charged because he is a sitting President, has no basis in law and is obviously not tenable. This assertion will only become true if the Constitution is amended to indemnify a sitting President from prosecution. This is because such an indemnity would constitute a fundamental breach of the principle of the Rule of Law and at present it would thus be unconstitutional.”

With respect Kemp’s submission is patently wrong. Moreover whether the DA could force the NPA to act is another question altogether and must be divorced from this one. In this regard read Professor De Vos’s article in full.

As we stated in our earlier article the issue goes to expedience and not the question of whether you can prosecute a sitting president.

By law you can.

Note

This particular column is to clear up the misconception that is being created in the Pretoria High Court.

I am not saying that Zuma should be prosecuted.

I am also not saying he shouldn’t be.

What I am saying is that the public should know what the actual position is in terms of the Constitution and then make their decision.