Zuma: Can we be reasonable?

Due to popular demand (read: more than half a dozen emails requesting me to state my views on the NPA decision to drop charges against Jacob Zuma) I have decided to make my opinions known.

Just like Michael Corleone in The Godfather — Part III, each time I try and sit out “matters of national importance” [MONI], you pull me back in. The upside is that today, I get to dazzle you with my impressive reasoning powers. By the time I am done you will see the error of your hysterical ways and learn to calm the eff down.

My first order of business is to point out that my understanding of the law and the principles governing the law are dangerous at best. But ignorance on any subject has never stopped me before. For the purposes of this exercise I am armed with only one weapon; the belief that, at the core of the law lies reason. At this point I would like to draw a distinction between the concept of justice (as is used within the framework of the law) and the concept of fairness. I believe that only incredibly naïve individuals believe that justice equates to fairness.

Many decisions have been taken by legal minds since the whole Zuma saga began. And each time these decisions were taken, the response would be what I would call “a frenzy of mass hysteria”. These righteously indignant reactions would be based on two broad schools of thoughts that seem to govern our national psyche. In this country we have two types of people:

1. People who believe that Jacob Zuma is the seven-headed, ten-horned beast with a 666 birthmark in his inner left thigh that St John wrote about in Revelations.
2. People who would respond, “Should I go on one knee or both?” if asked to give Zuma “attention”.

I think you would be disappointed if I didn’t waste any of your time stating the obvious. So I will state the obvious. Coz that’s just how I roll. I believe that the typically hysterical reactions to decisions taken by a variety of individuals in our judiciary in the Zuma matter have been driven by strong feelings about Zuma, along the two categories above.

In my analysis I will move from two premises. Firstly that the reason we need judges to adjudicate in legal matters in the first place is because laws are open to interpretation. Otherwise we would have developed software to judge cases by now. I would be disappointed if you disputed that fact. Secondly that these interpretations tend to be inconsistent on account of relying on human brains to perform the interpretations.

Having got that out of the way, I think we will all agree that the law only requires those who apply their minds to these decisions to be sober, impartial and reasonable. I cannot comment on the sobriety and impartiality of the individuals who have shaped this case but I believe I can assess their reasonableness — right or wrong. And so here goes:

Ngcuka’s 2003 “prima facie but unwinnable” decision — I think that this was a reasonable decision. Having solid evidence of wrongdoing does not exist in the absence of solid counter-evidence proving innocence. Without applying one’s mind to the issue of impartiality on Ngcuka’s part, this seemed like a reasonable judgment on whether to prosecute Zuma or not. The over-the-top reaction to Ngcuka’s pronouncement at the time was driven by individuals in the 2nd category of people above. If Ngcuka wasn’t convinced that Zuma could be prosecuted successfully, why waste our taxes?

Pikoli’s 2005 decision to charge Zuma after the Shaik verdict — This decision didn’t seem reasonable to me. The NPA, for all we knew, had made the decision to prosecute Shaik and not Zuma in 2003 because it had enough to “get” Shaik but not Zuma. That is what Ngcuka had said. Without increasing their pool of dirt on Zuma, but emboldened by success against Shaik, they decide to charge Zuma. Suspicions that he was charged without fresh evidence were strengthened when they raided his residences, those of his lawyers and close associates subsequent to their decision to charge him. It just seemed unreasonable to me.

Judge Qedusizi Msimang’s 2006 judgment — Even Zuma’s worst detractors’ reactions were muted on this one. Completely reasonable decision. Five to six years of investigations later, the NPA should have been ready. The NPA had signalled their readiness to prosecute Zuma when they charged him more than a year earlier. What was the hold-up?

Mpshe’s 2007 decision to re-charge Zuma — This decision is clouded by many factors such as the “interesting” timing and subsequent revelations surrounding the circumstances at the time. Add to that the fact that both Mpshe and McCarthy now seem to want to disown that decision as not theirs respectively. I hereby declare that this decision belonged to Mpshe seeing as, irrespective of who made the actual decision, the buck stopped with him. Even if he didn’t make the decision, he had the power to take it back when he cut short his vacation at the time. As for the decision itself, I think it was a reasonable decision if the NPA had gathered enough solid evidence. Issues of timing are peripheral, as far as I am concerned.

Judge Nicholson’s 2008 judgment — A reasonable decision despite suspicions from some quarters that Nicholson wore a “100% Zuluboy” T-shirt under his frock and hummed “Umshiniwami” as he read the decision. But like I said, I’m not interested in issues of impartiality. I find subsequent hysteria about the fact that Nicholson went on an unsolicited joyride, peddling his own wild conspiracy theories baffling. That leads us to the Supreme Court of Appeals judgment.

The SCA’s judgment — The Zuma team had, in their original application to Judge Nicholson, made allegations that Zuma was the victim of a political conspiracy, involving the NPA. In their response, the NPA had specifically requested Judge Nicholson to strike Zuma’s “vexatious allegations” off the record. Eight days before he delivered his September 2008 verdict Nicholson had, again, asked both sets of lawyers whether he should rule on the NPA’s request to have the allegations struck off the record and the NPA had been adamant that he should. Had he not ruled on the request (thereby inadvertently going off on a “tangent”) there would have been allegations of bias on his part. My opinion is that the SCA’s judgment was unreasonable.

Mpshe’s 2009 decision to drop the charges — Again, I will ignore the peripheral issues of arse-covering, selfish self-interests and arse-creeping to new bosses. I will focus on the reasonableness of the decision itself. In my simplistic mind, the legal principle governing the conduct of prosecutors is the most important here. It is the principle that demands of a prosecutor to recuse himself from a case in which he has vested interest. After all, if a prosecutor leads evidence in a case involving a man he happens to know is diddling his wife, the temptation to create evidence versus merely collecting it will be too high. The principle central to Mpshe’s decision is whether, in fact, a fly spoils an ointment or not. I believe his decision to have been reasonable, if that is the central principle at stake. Dealing with McCarthy separately without interrogating the influence he exerted on the construction of the case is like arguing that the ointment remains unaffected by the previous presence of the fly. If he had decided to still go ahead with the case, then I would have expected the NPA to go back and dust every bit of evidence gathered so far for McCarthy’s fingerprints. That could take another year at least. I need to reiterate that I am applying only reason here, not the law.

Zille and De Lille’s legal actions — I believe that both Zille and De Lille’s actions are reasonable. You have to understand that these ladies are not officers of the court. They are not required to be impartial in this MONI. Their job is to ensure that Zuma goes down. After all, they’d have to be pretty lame opposition party leaders if they didn’t think he’s the worst thing to befall this country. They cannot be side-tracked by irrelevant considerations such as whether Zuma is innocent or guilty. It is for this reason that they have been disappointed by all the court decisions in favour of Zuma and have applauded every decision against him. Even if a court of law had acquitted him, I would not expect them to change their minds about his guilt. This is based on their firm belief that Zuma is guilty of all charges brought against him based on the evidence gathered by some people who may or may not have been driven by political motives. If this is the premise from which one moves from, De Lille and Zille’s actions are 100% reasonable.

Like I said at the onset, I have only applied my mind only to whether these decisions are reasonable or not. I did this only because I lack the competence and training to apply my mind to the technical legal aspects of these decisions.

I now invite you to tell me how unreasonable I am.

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