A Threat to the Constitution

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Feb 1, 2010 No Comments ›› jskdezign

Posted 18 April, 2009 – 09:00 by Moss M Matheolane

A deep sense of unease is brewing in the legal fraternity and beyond after ANC president Jacob Zuma’s comment last week that the Constitutional Court’s authority needs to be “looked at” and that its judges “are almost like God”.

The Mail & Guardian understands that a letter was circulated among judges in the Constitutional Court — the highest in the land — urging them not to respond to Zuma’s utterances, and that they unanimously agreed to this.

Zuma had been quoted saying: “If I sit here and I look at the chief justice of the Constitutional Court, that is the ultimate authority. I think we need to look at it, because I don’t think we should have people who are almost like God in a democracy. Why? Are they not human beings?”

Also this week legal heavyweight Wim Trengove called on the legal fraternity to “be brave” and to speak out against the National Prosecuting Authority’s (NPA) dropping of charges against Zuma, calling it “incomprehensible and indefensible”. And former president FW de Klerk called on Zuma to “do nothing that will prejudice the independence and dignity of the judiciary”.

The M&G has learned that the Constitutional Court’s judges were “deeply concerned and perturbed” about Zuma’s remarks and agreed among themselves that they should make no public response, given what they see as the gravity of his attack on the court. Those familiar with discussions on Constitutional Hill say the judges are anxious not to get drawn into a potentially damaging public spat on such a crucial issue.

“The judges felt that they are mature enough not to respond,” said one insider. “The Constitutional Court ruled against [Schabir] Shaik when they refused him leave to appeal his conviction and sentence. Also remember that the court last year ruled against Zuma’s objections that the search and seizure warrants were illegal and that client privilege was infringed when the Scorpions seized documents from [Zuma lawyer] Michael Hulley’s office.

“The judges are judges – not gods. Zuma is implying that the judges think they are gods. It’s not worth replying to this idiotic lashing out against the Constitutional Court. The judges have to stand above this and not respond,” the M&G was told.

“Who does Zuma suggest should be the highest judicial authority in the land? Two judges have ruled in his favour; some 20-odd judges have ruled against him. He can’t attack the entire system because he is angry. It’s very dangerous,” the sources said.

A senior Cape Town advocate, asking to remain anonymous, said Zuma’s utterances are “unforgivable”. “He is clearly, constitutionally speaking, illiterate and it’s dangerous because it’s subversive. This is our future leader, who will have to appoint the judges of the Constitutional Court. Will he take us to the American model where judges are overt political appointments?” the advocate asked.

Speaking at the University of Cape Town, Trengove — who acted for the NPA against Zuma — said the decision to drop charges was flawed and “indeed ominous” and “had undermined the entire judicial process”.

“I do believe that it is time for all of us — and particularly for lawyers — to stand up and speak out about abuses of this kind. Lawyers have a particular duty to do so and, if we don’t, we might one day look back at this decision and realise that it was a tipping point leading to the slippery slope of erosion and ultimate destruction of the rule of law,” Trengove told an audience of students and advocates.

De Klerk has called on Zuma to “observe the spirit and letter of the Constitution. The NPA’s decision last week not to proceed with the proseĀ­cution of Zuma may be identified by future historians as the point at which South Africa began to stray from the rule of law.

“Recent developments affecting the NPA and his remarkable comments on the Constitutional Court raise serious questions … An enormous amount is at stake: the Constitution is the foundation for our national unity. Without it we will disintegrate. It is the assurance of our rights and freedoms. Without it we will descend into the mire of ‘Big Man’ politics that has blighted so many other countries in Africa,” De Klerk said.

De Klerk urged Zuma to “do nothing that will prejudice the independence and dignity of the judiciary”. He said: “I call on all South Africans to consider the critical importance of preserving our Constitution when they cast their votes next Wednesday. The Constitution provides the best assurance for the protection of our rights and freedoms and for the preservation of our national unity.”

By Pearlie Joubert for the Mail & Gaurdian