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By Mutsa Makuvaza and Nompumelelo Sibanda
FORMER Cabinet Ministers Professor Jonathan Moyo and Tendai Biti have separately said the South Africa’s constitutional court made a terrible error in convicting former President Jacob Zuma without giving him an option for appeal.
Prof Moyo described the ruling as cruel, vindictive, outright political persecution and a case of jungle-law adding that contempt of court sentences in constitutional democracies are not vindictive but are coercive by way of suspended jail terms.
“Right thinking people, certainly the majority in Africa’s streets and villages, stand with President Zuma who is clearly being persecuted,” said Prof Moyo, a former Zimbabwe Cabinet Minister.
“Contempt of court sentences always and everywhere in constitutional democracies are not vindictive but are coercive by way of suspended jail terms!”
Moyo added: “Finding Zuma in contempt of court is understandable, there won’t be much disagreement there; but giving him a 15-months unsuspended sentence, instead of the customary coercive (suspended) sentence to enable him an opportunity to purge the contempt is vindictive and outrageous!
“Then only then would he invite the penitentiary upon himself. Zuma’s contempt isn’t in doubt. But for a court of first and last resort to impose an unsuspended jail term on him is a travesty of justice, since there cannot be an appeal; it’s unheard of. It’s vindictive jungle-law!”
Moyo said one goes to prison if, upon being given a suspended jail sentence to coerce them to do what they were contemptuously refusing to do, theu persist in your refusal. This was not the case with Zuma, Moyo noyed.
“The suspended jail sentence comes into effect once one goes against the suspended sentence . Society needed Zuma at the Zondo Commission, not in jail!”
Two judges disagreed with the punishment meted on Zuma, and Professor Moyo says their arguments make more sense than Khampepe’s overruling judgement. Judge Leona Theron and Judge Chris Jafta gave a dissenting judgment.
Therom started her judgment by quoting Holmes J of the Supreme Court of the US in the 1904 case of Northern Securities Company v United, who stated that: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.
“… The main judgment acknowledges that ‘it is indeed the accepted practice in contempt matters to seek compliance, using punishment as a means of coercing same’ and my Sister Khampepe admits that she has ‘yet to come across a case in which a solely punitive order of immediate committal has been made, or where punishment is not calculated to coerce the recalcitrant to comply with the initial order’,” said Theron.
This, according to Prof Moyo, carries more weight and sense of fairness than jailing Zuma.
“The obiter dicta in this introduction to Justice Theron’s dissenting minority opinion is powerful, persuasive and destined to be the jurisprudential precedent in South Africa, in the near future. Justice Khampepe’s jail order is cruel and not based on any enduring legal principle!” Prof Moyo reckons.
Another former Cabinet Minister Tendai Biti, a top law at Biti Law on Harare as well as vice president for the opposition MDC Alliance, agrees with Professor Jonathan Moyo.
“Justice Theron’s opinion is compelling and in my view correct. Constitutional court should only sit as a court of first instance only in matters in respect of which it is bestowed with original jurisdiction.
“Court failed to protect itself thus opening doors to infantile attacks on it,” Biti said.
The fact that the dissenting judgment was not in favour of a wholly punitive sentence is now being used as the basis for an argument that the majority judgment is itself unconstitutional.
The judgement against Zuma starts with a quote from former SA president Nelson Mandela at the inauguration of the Constitutional Court on 14 February 1995, when he said: “We expect you to stand on guard not only against direct assault on the principles of the Constitution but against insidious corrosion.”
Mandela’s words were a clarion call to judges of the court to protect the rule of law as a duty. And it is the same duty that acting chief justice Sisi Khampepe spoke of when delivering the majority judgment in Zuma’s case: “My duty, as I pen this judgment, is cloaked in the duty and loyalty that I owe to our Constitution and the rule of law that undergirds it. I find myself left with no option but to commit Mr Zuma to imprisonment in the hope that doing so sends an unequivocal message: in this, our constitutional dispensation, the rule of law and the administration of justice prevails.”
Soon after the judgment was delivered, the spokesperson of the Jacob Zuma Foundation, Mzwanele Manyi, slammed the ruling as unconstitutional, leaning heavily on the minority judgment by Theron and Jafta.
Zuma has clearly made it known that he is ready to be imprisoned: “I believe history will absolve me. I know I have dedicated my life to the cause of advancing the interests of my people. I will serve the term of imprisonment imposed by the Constitutional Court [judgment was reserved in the case so this outcome is yet to be determined by the apex court] that has already become the focal point of the Defend our Democracy campaign.
“This campaign is dangerous to our democracy and when its true fruits are seen in time, I will be vindicated,” Zuma once said in a statement. – Zimbabwe Voice ■