In a recent article in the Mail & Guardian Paul Malefane wrote that the judicial process has been abused in the matter of criminal charges against Jacob Zuma, and that the ANC president's constitutional rights to fair trial had been violated. He issued a call for the ANC National Executive Committee (NEC) to demand that the courts dismiss the case and order the National Prosecuting Authority to "stop its shenanigans."

There are a number of things to be concerned about here. First, I'm not quite sure on what basis Malefane believes the ANC NEC is empowered to ‘demand' a particular course of action from the courts. South Africa's courts, in the language of the Constitution he rightly relies on, are independent and subject only to the constitution. In addition, the Constitution itself demands that "no person or organ of state may interfere with the functioning of the courts." Malefane's call for the ruling party to ‘demand' that the courts act in a particular way flies in the face of this constitutional requirement.

Second, assuming his call was heeded, I'm not sure exactly what a shenanigan is or how a legal order to stop one might be phrased.

But the aspect of Malefane's tirade that deserves most attention is his understanding of the right to fair trial. The cry of unfair judicial process has been used as a rallying call against the state institutions whose role it is to prosecute criminal charges, and has been greedily devoured (‘conzumed') by many. Unfortunately, despite Malefane's claim to ‘fully understand the Constitution' his (and others') reliance on this concept is flawed.

The most common complaint from those in the Zuma camp is that he has been tried by the media and that his right to be presumed innocent has been violated. Section 35(3)(h) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to be presumed innocent.

This right requires that an accused person be presumed innocent by a court until the prosecution proves beyond a reasonable doubt that the accused is guilty of the crimes with which he or she is charged. The right cannot protect an accused person from newspaper reports because, importantly, newspapers do not have the power to pronounce a person guilty (or not guilty) in any way that is legally meaningful. And certainly newspapers cannot impose any kind of sentence. ‘Trial by media', however unpleasant or even unsavoury such a thing may be, is incapable of determining guilt or innocence - and is to that extent a misnomer in any case.

Whatever the newspapers may say about Zuma, it is on the evidence presented to the court by the prosecution and the defence that his guilt or innocence will be determined. Zuma has made extensive use of the legal tools available to him to prevent potentially damning evidence reaching the trial court, so there can surely be no complaint that the judicial process has prejudiced him in that regard.

The right to be presumed innocent exists to guarantee that no accused person face the consequences of a guilty sentence without first having been proven guilty beyond a reasonable doubt in a court of law. Zuma could complain that his rights to a fair trial have been violated only if he actually experiences the legal consequences of a guilty verdict. Until then, the complaint that his right to be presumed innocent has been violated makes no sense.

A second complaint that is often made is that Zuma's right to a ‘speedy trial' has been violated. Section 35(3)(d) provides that every accused person has the right to have their trial begin and end without reasonable delay. The complaint Malefane makes is that it took the NPA 15 months to charge Zuma for a second time after the initial charges were dismissed.

This in itself, he goes on, is enough for a court to dismiss the charges because ‘justice delayed is justice denied'. The right to have one's trial begin and end without unreasonable delay protects accused persons from the disadvantages that flow from facing criminal charges - arrest or detention, restrictions on travel, the stigma and loss of status associated with criminal charges, and so on.

In the 15 month period to which Malefane refers, Zuma was not an accused person. He was a free man, so to speak, unaffected by any of the disadvantages of pending criminal prosecution. It was only once he was charged by the NPA for the second time in December that he became an ‘accused person' for the purposes of section 35 of the Constitution, and from that date forward that he could rely in the right to have his trial begin and end without reasonable delay.

The Constitution also guarantees an accused person "adequate time and facilities to prepare a defence" (section 35(3)(b)). The trial date has been set for August. The NPA has offered Zuma the option to begin his trial earlier, but so far he has not availed himself of that opportunity. The only person delaying justice at present, it would seem, is Zuma himself.

As for the "irresponsible utterances" that have infringed Zuma's dignity, well, that has no impact on the fairness of his criminal trial. Whether Zuma feels that the media his infringed his dignity does not affect the probity of evidence establishing his innocence or guilt. Further, there are remedies available to Zuma in civil law to which he can turn for the protection of his dignity. Again, Zuma has shown no hesitancy in using these legal tools. He has instituted defamation proceedings against various newspapers and cartoonists, claiming damages that initially totalled R68m. It seems that being sued by Zuma is the entry pass to some new kind of press club.

Jacob Zuma has faced and is facing criminal charges. So far, he has used the courts and the law to his own advantage, and the judicial process has so far protected his constitutional rights. Further allegations that his rights to a fair trial have been violated can, like the fact of his guilt or innocence, only be established by a court of law. Either way, for Zuma to be treated fairly, he will have to have his day in court.

* The author is a Johannesburg native currently completing a PhD at the Institute of Law and Society at New York University