The sinister pattern of threats to the South African Constitution re-emerged through President Zuma's public relations veil this week when his lawyers said he is above the law

The affidavit signed by Michael Hulley, Jacob Zuma's attorney, and submitted to the North Gauteng High Court, was a response to the DA's application for a judicial review of the decision by the National Director of Public Prosecutions (NDPP) to withdraw charges of fraud, corruption, racketeering and money laundering against him. Hulley stated: "I have been advised that the incumbent State President, like the President of the United State, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency".

On 6 April 2009, less than three weeks before the general election, the acting NDPP, Mokotedi Mpshe, announced that the National Prosecuting Authority (NPA) had decided to drop the charges against Zuma. He gave the most flimsy and unconvincing of reasons, based on secret tape-recordings (of uncertain legality) in which the previous head of the NPA was wondering whether to charge Zuma before or after the ANC Conference.

However, it was Mpshe's decision (not his predecessor's) to re-charge President Zuma on the basis of evidence that Mpshe himself said provided "a firm basis for the institution of a prosecution". On withdrawing the charges, for reasons that remain a mystery, Mpshe confirmed that Zuma had not been acquitted of the charges. But by withdrawing them Mpshe cleared the way for Zuma to become President of South Africa.

The DA, outraged by this political abuse of the NPA, filed an application for a judicial review of the decision. This is the context of Michael Hulley's remarks this week. Hulley also said that because the DA's application "is obviously driven by its political agenda and aims, I submit that these proceedings constitute an abuse of court process and are impermissible for that reason".

And "it is simply not legally feasible to turn back the clock especially given that the charges have been withdrawn". This is disturbing nonsense. Bear in mind that even Mpshe admitted there was a good case for prosecution. Hulley is confirming his contention that, even if Zuma is guilty of criminal action, he is immune now because of his high political office.

Hulley is completely wrong. The South African Constitution makes this crystal clear. Section 9 (i) of the Bill of Rights proclaims that "everyone is equal before the law". In Chapter 5, on The President and the National Executive, the President is granted no special favours or immunities for criminal conduct. The President is the same as the rest of us: if he commits a crime, he must be charged and tried.

I saw President Zuma on Wednesday. We had a long, friendly and productive meeting. He was as charming as ever. We disagreed on certain issues, as is inevitable in democratic politics, but our differences were civilised.. However, my great fear is that under the cloak of Zuma's charm, his cadres are subverting the South African Constitution for political ends and trying to corrupt the independent institutions of the state, especially the judiciary, into tools of the ANC. On Thursday, Zuma himself said that he was not above the law and that he would willingly stand trial if so asked. However, his lawyer, had just said the opposite, and is going out of his way to stop Zuma ever having his day in court.

After the April elections, Jeff Radebe became the Minister of Justice under President Zuma. Radebe immediately set about beating the Judicial Services Commission (JSC) into the ANC's mould (or rather the mould of the ascendant Zuma faction in the ANC). The JSC has two main functions: to recommend nominees for judicial office and to consider disciplinary complaints against judges. It has 23 members, representing political, professional and educational aspects of the legal fraternity. Radebe postponed its sittings so that he could ensure four new appointments loyal to Zuma in time for crucial hearings on judicial appointments. 12 of the 23 are now either ANC politicians or appointees of Jacob Zuma. The new, compliant JSC then showed its true colours in the case of Judge John Hlophe.

Chief Justice Pius Langa, on behalf of the Constitutional Court, had laid a complaint with the JSC against Hlophe, claiming he had tried to influence two judges considering cases related to President Jacob Zuma. The matter came up last month before the JSC's 10 member disciplinary committee. In a fumbling majority decision, the JSC decided it would not hold an inquiry into Hlophe's alleged misconduct. A minority decision, far more coherent and supported by the only two judges on the panel, said there should be such an inquiry. Hlophe, a Zuma loyalist, was off the hook. Mr Justice Kriegler's organisation, Freedom Under Law, is also seeking a judicial review of this inexplicable decision that has fundamentally undermined the JSC's credibility.

This weekend the JSC will begin interviews to fill four vacancies for judges on the Constitutional Court. Three applicants, Appeal Court judges Belinda van Heerden and Robert Nugent, and now Western Cape High Court judge Shehnaz Meer, have withdrawn. They have not given reasons publicly, but it is common cause in legal and academic circles that the withdrawals are related to a lack of confidence in the JSC. The JSC is becoming an instrument not of justice but of the Zuma wing of the ANC.

In the six months since April, we have had ANC party control taking over the independent institutions of the state. The National Prosecuting Authority put loyalty to its political master before the rule of law when it dropped charges against Jacob Zuma. The Minister of Justice has turned the JSC into a tool of the ANC, and the JSC has dutifully exonerated Hlophe because he is a champion of the Zuma faction. And now Michael Hulley has declared in court that Jacob Zuma is above the law.

If, for some reason, Jacob Zuma fell out of favour with the most powerful ANC faction, as Thabo Mbeki did before him, these state institutions could quickly be used against him. Since the ANC cadres are always keenly aware of power play within the party, if the play turned against Zuma, the NPA could quickly lay criminal charges against him, a suitable judge could try and convict him, and he could be thrown out of the Presidency and perhaps into gaol. We are sinking into a kind of gangsterism when the decisions of the state justice system depend not on the law but on party intrigue. That is why the faction fights inside the ANC are so vicious.

There has been encouraging resistance to these abuses of justice from across South Africa. Newspapers and commentators of all views have condemned them.

Alas, there has been the usual, dreary and nonsensical outcry that anyone who challenges these judicial abuses is a "racist": The tired refrain is this: "the racists pretend they are defending the rule of the law when actually they just hate all black judges". Such drivel ignores the fact that Chief Justice Pius Langa, who brought the complaint against Hlophe is black, and so are Justices Bess Nkabinde and Chris Jafta, whom it is alleged Hlophe tried to influence, and so are 90% of the judges appointed since 1994.

The DA believes that the rule of the law is the foundation of decent and civilised societies. Without it there can never be peace and prosperity. We believe that the independence of the judiciary should be sacrosanct. The assault on this independence by the ANC is of the gravest concern. It is masked by the charm of its leader, which makes the threat even greater.

This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the Democratic Alliance, September 18 2009

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