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BY DR MASIMBA MAVAZA
When I was a prosecutor in the 1990’s in Zimbabwe we had some prosecutors and lawyers who would come into court and make submissions which will be aimed at the people sitting in the gallery.
They were very entertaining. We had a lawyer the late George Chikumbirike he would start his submissions by making the gallery excited and making sure once in a while the gallery is thrown into a laughter. The problem of playing to the gallery was that the gallery does not make the decisions. But if the decisions are against George the gallery will blame the judge.
Playing to the gallery is to do things that one thinks will be popular among many people instead of doing what one thinks is right a governor who refuses to play to the gallery In other words it is to behave in a way intended to make people admire or support you: Politicians these days are more interested in playing to the gallery than exercising real influence on world events. So this time it was the judges who have become Attention-seeking, distracting and showing off outfits.
The problem of judges playing to the gallery is that they will expose the law to ridicule. The situation in South Africa has pitted the judicial system against the democracy and political system.
What we see in South Africa now are lessons to be learnt and a stark warning to Zimbabwe. What happens there will happen to our revolutionary stalwarts once they leave office. The judiciary is behaving as the avengers sent by the disgruntled colonialists cum Westerners. This is legal system at war with the executive.
It is indeed a shame on the South African Constitutional Court judges for failure to understand their own supreme law. They ignored their own constitution just because they want to fix and not to help. It is a wonder that when the constitutional court set they forgot to be guided by the law and by their own constitution.
The South African Constitution especially section 35 subsection 3 gives the pertinent guidelines.
Section 35(3) “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
The 1993 Constitution for the first time in South African history accorded constitutional recognition to constitutional law and emphasis on fairness. The South African law post apartheid was crafted to embrace due process. This brought to an end the debate on the status of fairness in South African domestic law. This step was a symbolic break from the apartheid legal system, which was closely associated with the violation of individual rights and indicated to the international community that South Africa was willing to abide by the rule of law and accepted rules. More important, however, for South African lawyers are the fundamental changes the constitutional regulation of justice system and law introduced into South African law.
But in a fit of political change the Full bench of the Constitutional Court embarrassed the profession of Law by failing to interpret SECTIONS, 35 (3) (f), 35 (3) h, 35 (3) (1),35 (3) 0, 7(2), 9(1), 9(2) of the South African Constitution. Their schoolboy errors has given Zuma a chance to freedom and buoyed the Zumarists to act in defence of ZUMA. Laws exist to protect people and there’s often a “spirit” behind the “letter” of the law.
Often, people are in violation of the letter, but not the spirit (the reason the law exists).
When people don’t enforce the “letter” of the law, people tend to obey common sense and self-correct. Just human decency and kindness to make sure everyone was ok to get on with it. So the decency of the MKZ veterans was to cause a turmoil and confusion in the application of law.
A closer look at miscarriages of justice, however, reveals that such errors are not aberrations but deeply revealing, common features of our legal system.
The constitutional court ruling was not not a random mistake but an organic outcome of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased judges, judicial activists and racial discrimination. The court has defied the Constructive relationships between the three arms of government—the executive, the legislature and the judiciary.
The ruling has removed are the importance to the effective maintenance of the constitution and the rule of law. In recent years, the character of these relationships has changed significantly, both because of changes in governance and because of wider societal change.
The behaviour of the constitutional court
demonstrates that there are still disagreements and uncertainties about the relationships between the three arms of government.
Moreover, the news media played an increasingly important role in reporting and commenting on the judiciary, and—as in other contexts—there has been a decline in the culture of deference. Individual judges and the judiciary as a whole are seen as “fair game” by columnists and headline writers in the tabloid press. Broadsheet journalists also chart closely the intrigues of discussions and disagreements between the senior judiciary and executive. But in this case the constitutional judges have acted to settle scores.
The conflict between the executive and judiciary is a long time back existing since the Constitution came into force. The political establishment of function sharing between both wings is depicted in the Constitution. The thrust of power acquiring sometimes creates tensions when the executive starts assuming the power of the judiciary then the government becomes autocratic. The executive is that wing of the government which makes policies and implements it. The judiciary has been bestowed with the power to check such actions. The separation of power exists between all the wings of the Government which is exercised by the method of Check and Balance. So the courts should not in anyway engage in political issues as to please one section.
So in this case one would ask how can a Constitutional Court Convict and sentence an individual to prison as a court of first instance and leave the accused person without a right to appeal? This question is the reason of all the uproar in South Africa today. The South African Constitution derives its powers from. Section 2 of South Africa Constitution which reads “Supremacy of Constitution 2. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
We must therefore remember that doctrine of Supremacy of the constitution is based on consistency with existing provisions of the constitution and the courts enforce the law along the constitutional guidance.
So any conduct that is inconsistent with the constitution is invalid no matter who does it. Often people miss the value on Supremacy of the constitution. The constitution is obeyed on the round. The law works in an inter connected way meaning breaking part of stops the currency to flow. The very breaching of one part the whole constitution is breached then the whole process which led to the breach of that provision is invalid no matter who does it, in this case no matter it is the constitutional court.
The constitutional court did the unthinkable it became seized with emotions yet the court is incapable to work on emotions.
There is no doubt that President Jacob Zumba refused to appear before a Commission of inquiry. This angered the judges of the constitutional court who ruled on emotions and not on law. They become blinded by their personal feelings and were set to punish and show Zuma one thing or two. That was the most fatal mistake they made. The court must never have emotions.
The Commission of inquiry approached the Constitutional Court with an application to order Zuma to appear before the commission of inquiry. This was an error which the constitutional court was supposed to correct by referring them back to a proper court. The case was improperly before the courts hence it was supposed to be struck off. So the ruling of the constitutional court was made on a sand foundation which taints the whole process.
The bench forgot to read the Constitution of South Africa in section 167 which states that “Constitutional Court 167. (1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges. Sub-s. (1) substituted by s. 11 of the Constitution Sixth Amendment Act of 2001. A matter before the Constitutional Court must be heard by at least eight judges. (3)The Constitutional Court— (a) is the highest court of the Republic; and (b) may decide— (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and (c) makes the final decision whether a matter is within its jurisdiction. Sub-s (3) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012. Only the Constitutional Court may— (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; (b)decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144. (5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force.
Sub-s (5) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012. National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—(a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other court. (7)A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. “ the construction is the heartbeat of the law. It must be followed to in letter and spirit. No where in this provision does it give the Constitutional Court the jurisdiction to try and convict an accused person as court of first and final instance without giving opportunity to appeal.
This is the miscarriage of Justice at its most.
One wonders how the highest court in the land presided and manned by the greatest jurists in the land failed to realise that contempt of court is a common law offence that is criminal in nature and not a constitutional matter, neither was this case an appeal. It was simply a glory searching adventure by the Constitutional court judges. A move which backfires big time. Section 167 makes it very clear that Constitutional court cannot hear a matter of contempt of Court and convict a person as the court of first and final court for following reasons.
Zuma’s constitutional rights were breached by the custodians of the very law. Section 35(3)(c) provides that Every accused person has a right to a fair trial, which includes the right— (c) to a public trial before an ordinary court. While Zuma could have refused to appear before a Commission of inquiry and the Commission sought the Constitutional Court to order him to appear before the Commission, which he refused, is an accusation which should have been taken to a appropriate court and follow due process.
The moment someone accuse Zuma of contempt of Court, which is criminal, the court should have been automatically blinded to his social status. Zuma deserved a fair hearing despite his status.
It is automatic.
The moment you accuse someone of a criminal offence it is the duty of the law enforcers to follow the due process.
Section 35(3) (e) gives right to any accused person to be present when being tried. This is a fundamental right. If Zuma was refusing to appear before a Commission or a Court, the first application was a warrant of arrest. He appears before a court which then indict him to where ever he must stand before trial. The system should have ordered for his arrest and bring before a public court of law.
The Judges should get evidence from his own mouth as to why he could not comply with the order. This is so because he was now an accused and not a mere witness to Commission of inquiry. Section 35(3) (f) . An accused has a right to choose, and be represented by, a legal practitioner, and to be informed of this right promptly. While Zuma could have had lawyers representing him on all the civil application relating to his non appearance before a commission of inquiry or not complying with Constitutional Court order, the moment he was accused of contempt of court, it was the duty of a court to inform him directly that he had a right to be represented by a legal practitioner of his choice in relation to the Contempt of Court Charges. This right cannot be assumed by court that who so ever is appearing before the court as his lawyer can answer the contempt of court charges on behalf of the accused. Section 35(3) (h) gives right to any accused person to be presumed innocent, to remain silent, and not to testify during the proceedings. The moment the court found out that Zuma was in default of a court order he became an accused and not a convict. It was not his duty to convict himself of contempt of court. Those who accused him of contempt of court should have followed the procedures that lead to a trial and at all cost assumed him to be innocent.
Section 35(3) (i) every accused person has right to adduce and challenge evidence. Evidence presented in your absence cannot be adduced for one to be challenged. The Learned judges should have known that any accused, that includes Zuma, has a right be present in his trial for purpose of adducing evidence against him. What ever was given to court in his absence remain allegation. It has to be presented before the accused and be given opportunity to hear or see it in a public court being presented in court.
(vi) More importantly to the jurisdiction of Constitutional Court, is the fact that every accused has an inherent right in terms of section 35(3) (o) to appeal to, or review by, a higher court. No doubt that the Constitutional Court is the highest Court. A person cannot appeal anywhere else or have the decision reviewed by someone else. This should have been known from onset by the Judges that “every accused person, without exception, has an inherent right to appeal. More particular to the fact that they sentenced him in absentia, it was clear that the accused could want to challenge such decision. This right remains intact and has to be accorded to him as it is accorded to any other person.After raising the fundamental rights of any accused person as mention in the constitution,
(i) Section 7(2) of South African Constitution demands that the state must respect, protect, promote and fulfil the rights in the Bill of Rights. This include respecting, protecting and promoting Jacob Zuma’s right to be tried in a public Court, be present during trial, assumed innocent until proven guilty, apply for lesser sentence in mitigation and right to appeal or review of a decision taken by a court. These rights cannot be violated only on Zuma.
The bill of rights binds everyone including the Constitutional Court in terms of section 8(1). The Constitutional Court, despite being the Highest Court, it has an obligation to protect and promote the rights of every accused, including Zuma.
If section 35(3) protects the rights of “every accused person” then section 9(1) stipulates that every person accused of contempt of court, no matter which court, is given the same treatment as in section 35(3), more particular to the right to appeal.
Section 9(2) stresses that equality includes the full and equal enjoyment of all rights and freedom. It is clear, crystal clear that some of the rights of Zuma as an accused person were violated. When section 9(2) uses the words “full and equal enjoyment of right” it puts across a point that full cannot leave some and still remain full or equal cannot exclude Jacob Zuma.
Reading from section 36 on limitations of rights it states that “Limitation of rights 36. (1)The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Right”. The Constitutional Court cannot give itself power to limit the accused’s person’s right.
The whole concept of supremacy of the constitution is in section 2. “Any conduct that is inconsistent with existing provisions of constitution is invalid to the extend of its in consistency.
No doubt the constitutional court violated enshrined bill of rights given to every accused without exception. There is no doubt the Constitutional court’s sentence imposed is custodial sentence which in turn affect other rights and freedoms. The Court could not impose a sentence without option to appeal or review.
The conduct is therefore against the very law they purport to protect. If Zuma wishes he could approach the constitutional court challenging the constitutionality of the sitting which convicted him.
This could be or must be an urgent application which should have an effect of suspending the order which has been reached and tainted with illegality. Zuma’s legal team should apply that the judgement, conviction and sentence be declared unconstitutional and invalid.
That the Judges who heard the case and failed to uphold his right recuse themselves. This reminds us of the crisis created in Zimbabwe by the judicial activists.
The constitutional court betrayed the proper scope of the judicial power within the constitution. Judicial overreach increasingly threatens the rule of law and effective, democratic government. South Africa must work to address this problem – restoring balance to the constitution – by articulating the good sense of separating judicial and political authority.
South Africa as a whole now struggles to understand and correct the undue rise in judicial power by restating, for modern times and in relation to modern problems, the nature and limits of the judicial power within our tradition and the related scope of sound legislative and executive authority.
The judicial power has a central, strategic place in any well-ordered constitutional arrangement: no state is well-governed without an independent judiciary, exercising legal and constitutional authority to adjudicate disputes, including disputes between citizens and officials, fairly and in accordance with settled positive law. Our constitutional tradition has long recognised this truth, making provision since the collapse of apartheid.
The ZUMA judgement has seen a departure from the rule of law or a failure to recognise the importance of human rights.
But the good sense of this separation of powers is now increasingly doubted, after the constitutional court’s ruling. Many in the legal profession now share an expansive, adventurous understanding of judicial power and the willingness and authority of the courts to oversee Political day to day runnings lawmaking actions or to engage into factional wars.