THE LAST WORD

The Rule of Law

The impetus for this article came partly from discussions with colleagues and probably more apposite from quotations attributed to members of the public supporting the former State President who attended the opening of the hearing of the criminal trial of Thales and Jacob Zuma at the Pietermaritzburg High Court on 17 May 2021.

By Peter Bagshawe

One of the attendees is quoted as saying, “He is so old and now we are wasting money running behind him.” Another commented that she felt like Zuma was being persecuted, which echoes a number of similar statements from Zuma family members. The charges that were brought against Jacob Zuma include one count of racketeering, two counts of corruption, one count of money laundering and twelve counts of fraud, whilst Thales faces one count of racketeering, two counts of corruption and one count of money laundering.

The simple answer to why, within the criminal prosecutorial system, charges have been laid in this matter is The Rule of Law. This phrase has been in use for centuries and, to complicate matters, is not a codified or readily apparent legal rule; the Rule of Law refers to a position where the law rules in a particular state or country. Building from this position the Rule of Law is a mechanism that provides the equality of all citizens before the law and secures a non-arbitrary form of government in order to prevent the partial use or abuse of power. Broadly speaking, this would entail a situation where the authority and influence of law on a society, where the law acts as a constraint on individual and institutional behaviour, acts in a manner that ensures all members of a society, including government, are equally subject to publicly disclosed legal codes and processes. For this mechanism to work it is essential that measures are in place to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty and avoidance of arbitrary actions with procedural and legal transparency.

The history of the discussion about and the development of the Rule of Law may be traced back to Aristotle, but the main impetus came in the 16th-century when the divine right of monarchs to rule was under attack with arguments put forward to promote impartial legal systems being developed. From this starting point, it was developed to the point that currently the rule of law requires that every person be subject to the law, including people who are lawmakers, law enforcement officials and the judiciary. In this sense, it stands in contrast to dictatorships, or an oligarchy, where a dictator or cabal would be above the law. The current evolved view on The Rule of Law is probably best captured by The Justice Project which breaks their four principles (being Accountability, Just Laws, Open Government and Accessible Justice) into a further eight ranking factors. These are, briefly, Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Criminal Justice. Space does not permit a full review of each but the standouts are government actions must be subject to judicial review, government officials in the executive and legislative branches, judicial branch, police and military cannot use public office for personal gain, equal treatment before the law, effective control of crime and civil disorder and effective criminal investigation systems. The absence or partial implementation of the ranking factors lowers the score in respect of the strength of the applicable Rule of Law system.

From a practical perspective, the existence of The Rule of Law within any state does not guarantee that the system will be enforced and enforceable. Democratic principles and effective separation of powers between the legislature and judiciary are essential and the absence or erosion of either would jeopardise the system. Here, appointment of judicial officials and the funding of a strong, independent judiciary are key. Decay of the Rule of Law will take place if government lacks corrective mechanisms for restoring it. This would allow for the development of corruption, compounding the difficulty of restoring The Rule of Law, and the longer this is allowed to continue, the greater the likelihood becomes of corruption being embedded in systems of government. The longer this eroded system remains in place, the more difficult rectification and remediation would become. Eventually a collapse of The Rule of Law is the ultimate outcome.

Turning back to the trial of Thales and Jacob Zuma, the charges allege the use of public office for personal gain in respect of payments made by Thales to Jacob Zuma. More specifically, the charges in respect of both are racketeering, corruption, money laundering and fraud. The alleged payments relate to periods when Jacob Zuma was the MEC for Economic Development in KwaZulu-Natal. The Commission of Enquiry into State Capture (Zondo Commission) was established to hear evidence of and investigate allegations of state capture, corruption, fraud and other allegations in the public sector including organs of state. In respect of both the Zuma Thales trial and Zondo Commission fraud, corruption and personal gain are common threads, which require, in terms of the Rule of Law, to be investigated and findings by a judicial officer presented. A further application of The Rule of Law is the availability of the full ambit of legal defences to the Zuma legal teams over the period of both the prosecution and Zondo Commission. The trial in the Pietermaritzburg High Court was held over until 26 May 2021 to allow papers to be served on the State relating to an application by Zuma’s legal team for the recusal of chief prosecutor Billy Downer. This is similar to the application made for the Chairman of the Commission of Enquiry into State Capture to recuse himself from hearing evidence from Jacob Zuma at the Commission. This application was unsuccessful. Cynics may suggest that both were a manifestation of the Stalingrad defence first referred to by Zuma’s then advocate Kemp J Kemp in 2006 during Zuma’s rape trial and which has been repeatedly referred to by commentators in subsequent legal matters involving Zuma.

The South African Constitution contains provisions, checks and balances that ensure that The Rule of Law is capable of application in its full ambit. Factually it is being given effect; however the speed of matters being heard and the use of its mechanisms may lead to the incorrect conclusion that The Rule of Law has been subverted. The independence of our judiciary and the willingness of Parliament to review matters such as the fitness of the Public Protector to hold office give comfort that The Rule of Law is currently being protected.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.