The revolution is on trial (10): Some of the meanings and challenges arising out of Judge Nicholson's judgement

The SACP, together with millions of other South Africans, are of course hugely relieved at the judgement by Judge Nicholson on the application by President of the ANC, Cde Jacob Zuma, to have his case, once more, struck off the roll. This judgement also vindicates many of the things we have said before about the manner in which the National Prosecuting Authority (NPA) has pursued Cde Zuma for a period of 8 years.

The judgement vindicates us in our long held view that the charging of Cde Zuma is not a criminal but a political trial. The judgement has greatly assisted us in eloquently, and in a detailed fashion, outlining elements of this political trial.

The judgement further confirms what has been our argument that justice is indivisible, that justice does not only start when one has 'his/her day in court', but that justice must be seen to be applied in the entire legal process. Citing and endorsing an earlier court judgement, Judge Nicholson had this to say on this matter:

"What the learned judges were saying in that case was that the independence of the prosecuting authority is vital to the independence of the whole legal process. If one political faction or sectional interest gains a monopoly over its workings the judiciary will cease to be independent and will become part of a political process of persecution of one particular targeted political enemy".

This goes to the heart of the kind of rule of law we are struggling to build in our country, and is a devastating criticism of all those who have called for Cde Zuma to have 'his day in court', whilst conveniently and completely ignoring the manner in which the NPA has investigated him. Put differently what Judge Nicholson is basically saying is that unlawful behaviour by any component of the criminal justice system compromises the entire system, including the judiciary. In other words, justice is indivisible!

It was high time that the judiciary had to express its strong displeasure at the antics of the NPA, not only to protect the NPA but to project our entire criminal justice system. In many ways, as others have also observed, this judgement is an important contribution towards rescuing the judiciary from being tainted by the behaviour of one component of the criminal justice system.

Not unexpectedly, some analysts, especially those who had clearly formulated an opinion that Cde Zuma is already guilty, are now arguing that whilst Zuma might have been vindicated, but he is not exonerated. This is nothing other than an attempt, by the likes of Allister Sparks, to try and rescue their intellectual and moral integrity in the light of a judgement that clearly shows that Zuma, as we have consistently argued, can never, ever have a fair trial. By so saying these analysts also want to ensure, like Zapiro and his offensive shower, that a permanent cloud hangs over Cde Zuma, irrespective of whatever the courts have said about his maltreatment.

There are many aspects to this judgement, and therefore it will inevitably be debated for a long time to come. Whilst debate is necessary and welcome, the SACP and the whole alliance, must not fall into the trap of endless debates. Instead we should focus on both immediate and medium term measures that must be taken in the wake of Nicholson's judgement. In other words we have to keep our eyes on the ball, if we are to provide the requisite leadership not only to our members but to society as a whole.

It would be irresponsible for leadership to simply gloat over the findings of Judge Nicholson, and lose sight of the actions that need to be undertaken to defend the institutions of our criminal justice system.

There are a number of matters that require our attention, but only four will be highlighted here:

Political conspiracy

It is going to be important to take swift action on all matters relating to the improper political interference in the operations of the NPA by senior political office bearers, and also set in motion the necessary processes to go into the bottom of all this. A very strong message needs to be sent out to the whole of society that at no stage, now or in the future, should we allow organs of state to be used for internal party political machinations or to pursue narrow an factionalist agendas. This is the only way we can restore the confidence of our people in these institutions, whose image is already seriously impaired.

The criminal justice system

The Nicholson judgement has fundamental implications for the transformation and repositioning of our criminal justice system, especially the NPA, as well as the behaviour of those entrusted with political oversight over its various institutions, including the intelligence function. This, amongst other things, means that the current review of the criminal justice system underway has to be rethought in the light of this judgement. And if we are to restore the confidence of our people in the system, we need to ensure that such a review also involves the public as much as possible.

Clearly, the matter of the relationship between the prosecuting authority and political office-bearers responsible for oversight over this institution is a matter for urgent attention as part of this review.

The SACP is also of the view that Parliament needs to take urgent steps to call the NPA to account on the very many serious findings made by Judge Nicholson. Most importantly this must also be an opportunity for parliament to correct its very serious lapses in the past in not decisively acting on the recommendations of the Public Protector in 2006. All parliament did was to appoint an ad hoc committee which strangely only endorsed the report without following up on the very specific recommendations contained therein. For example, the Public Protector, complained about the non-co-operation of the then Minister of Justice and National Director of Public Prosecutions (NDPP) with his investigation, let alone the disdain with which the Minister and the Director treated the Public Protector. The SACP had called for action on this and, in hindsight, had Parliament acted decisively and timeously in calling to order those responsible, we possibly would not be where we are today.

A public debate also needs to be launched, with Parliament playing a leading role, to reflect on the strong views expressed by Judge Nicholson on the autonomy and manner of appointment of the NDPP.

The SACP needs to consistently raise issues relating to the class, gender and racial orientation of our criminal justice system. The working class and the poor continue to be inadequately catered for by this system as shown by, amongst others, the failure to protect the poor from abuse by employers, especially farm-workers and the continued shabby treatment of victims of rape.

It is the elitist orientation of our criminal justice system that precisely makes it vulnerable to machinations and manipulations inside the 'palace'.

The role of the media

Much as we have fought for and shall continue to defend freedom of expression and media freedom, we however all have a responsibility to create much more effective platforms to discuss the role of the media in the treatment of matters relating to the President of the ANC. Amongst other things we need to reflect on the balance between media freedom and individual rights as contained in the Bill of Rights. The media has completely avoided discussing this question, especially in the wake of the confidential press briefing by the former NDPP.

Most of the media has been deliberately blind to the very many abuses of the NPA that now the judgement has sharply brought to the fore. This is indeed a serious indictment on media, as most of it covered matters relating to Cde Zuma from the premise that Cde Zuma was already guilty and the onus was on him to prove himself innocent.

In this regard we wholeheartedly agree with the criticism levelled by COSATU on the behaviour of the media on the matters relating to Cde Zuma.

Mass mobilisation and mass awareness

It is absolutely important that we continue to wage mass awareness campaigns around the behaviour of the institutions of our criminal justice system generally, as these institutions are supposed to serve all South Africans irrespective of class, racial or gender location in society.

It is our continued mass mobilisation that has ensured that issues affecting the workers and the poor have found expression in public discourse. Of course elites have been extremely irritated by this as for them the 'barbarians' must always be kept outside the high gates of the palace! Were it not for this mass mobilisation, Cde Zuma would by now be history, followed by many other leaders and activists who are not part of the inner core of the palace.

Mass mobilisation and campaigning is also important in ensuring that we defeat palace politics and manoeuvres in our criminal justice system and beyond. Such palace politics seek to turn the workers and the poor of our country into spectators, rather than actors and the leading motive forces for radical transformation in our country.

The working class must continue to be at the centre of this mass mobilisation, and it is for this reason that we have placed the matter of the transformation of the criminal justice system very high on the agenda of the SACP's National Policy Conference to be held next week. It must be from a consistently class perspective that we must approach matters of the rule of law and transformation of the criminal justice system.

It is to the above and other related issues that our extended Politburo tomorrow will focus upon, as part of contributing towards taking our country out of the present quagmire. Our approach shall not be vindictive but seek to provide leadership on what is clearly a very serious moment of crisis for our democracy.

It is however important that much as the persecution of Cde Zuma has been the main entry point into all the above issues, the struggle on these fronts must be broadened and be part of the overall agenda for transformation, as part of consolidating and deepening a radical national democratic revolution.

Asikhulume!!

This article by SACP General Secretary, Blade Nzimande, first appeared in Umsebenzi Online Volume 7, No. 16, 17 September 2008