The submissions being made by the senior counsel for the president in the Pretoria High Court are, in my humble opinion, wrong and need to be clarified.
Kemp J Kemp SC
The counsel for President Jacob Zuma, Kemp J Kemp SC, has again stated that the Democratic Alliance could not force the director of public prosecutions to prosecute President Jacob Zuma because it was unconstitutional to prosecute a sitting state president.
Kemp argued that the DA could not have any legal standing “to seek an order that a state organ must act unconstitutionally by reinstating the prosecution”.
As evidence he suggests that : “Mr Zuma is the head of the executive and of the armed forces … one arm of the executive cannot act in a manner that paralyses another arm of the executive.”
That if Zuma was prosecuted, he would be required to sit in a court instead if doing his duties, such as appointing judges. He would effectively be prevented from exercising his powers.
Unconstitutional
In truth it is unconstitutional to suggest that a sitting president cannot be prosecuted.
As stated by Professor Pierre de Vos, who occupies the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town and is one of, if not, the leading expert on constitutional law :
“As yet I have no firm views on whether the President and the NPA will be successful with this technical argument about the right of the DA to bring the review application. There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive. What I do know is that the assertion made by President Zuma’s lawyer that he cannot be charged because he is a sitting President, has no basis in law and is obviously not tenable. This assertion will only become true if the Constitution is amended to indemnify a sitting President from prosecution. This is because such an indemnity would constitute a fundamental breach of the principle of the Rule of Law and at present it would thus be unconstitutional.”
With respect Kemp’s submission is patently wrong. Moreover whether the DA could force the NPA to act is another question altogether and must be divorced from this one. In this regard read Professor De Vos’s article in full.
As we stated in our earlier article the issue goes to expedience and not the question of whether you can prosecute a sitting president.
By law you can.
Note
This particular column is to clear up the misconception that is being created in the Pretoria High Court.
I am not saying that Zuma should be prosecuted.
I am also not saying he shouldn’t be.
What I am saying is that the public should know what the actual position is in terms of the Constitution and then make their decision.
His day in COURT is nigh!!!!!!!!!!!!!!!!!!!
Are these the same chaps that claim that all charges against Zuma should be dropped because it may embarrass the country during the World Cup? Sorry Traps I do agree with you but the prospect of ANYTHING dislodging Mr Zuma from the driving seat of the country is zero.. till death do us part.
HUMM, thanks for clearing that up? was wondering.
Could someone explain why Kemp J Kemp and Hulley are retained by the government and who is benefitting? They both seem to have mastered the art of subterfuge in ways that are truly frightening
@Traps
I am sure that in law both you and Pierre are correct.
No one is above the law in SA, not even the President.
So says the constitution (I think!)
In our realpolitik, though, it is clear that Mr Zuma is indeed de facto above the law, as are selected senior ANC party members.
The issue could well also be moot, beacuse even if the DA’s application was succesful, to my understanding, they could not as you state “force the NPA to prosecute Zuma” – all they could do would be to force Simelani to review or re-consider the matter.
Having re-considered the matter, any guesses as to what Menzi would decide to do, or not to do?
@Judith
Hulley is up to his ears in a very dodgy mining deal (Aurora), along with Zuma’s nephew and Mandela’s grandson.
Perhaps the minister of labour could whisper a word or two in his ear about the poor schmuck miners that have not been paid for months.
Or even Mr Vavi might have an opinion, as the workers are NUM members!
He (MH) is no Perry Mason, either – check out his less than illustrious academic record.
The same law also says:
When considering whether or not it will be in the public interest to prosecute, prosecutors should consider all relevant factors, including:
The nature and seriousness of the offence:
• The seriousness of the offence, taking into account the effect of the crime on the victim, the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim.
• The nature of the offence, its prevalence and recurrence, and its effect on public order and morale.
• The economic impact of the offence on the community, its threat to people or damage to public property, and its effect on the peace of mind and sense of security of the public.
• The likely outcome in the event of a conviction, having regard to sentencing options available to the court.
The interests of the victim and the broader community:
• The attitude of the victim of the offence towards a prosecution and the potential effects of discontinuing it. Care should be taken when considering this factor, since public interest may demand that certain crimes should be prosecuted – regardless of a complainant’s wish not to proceed.
• The need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system.
• Prosecution priorities as determined from time to time, the likely length and expense of a trial and whether or not a prosecution would be deemed counterproductive.
Stop the Zuma rant please !
I must say I chuckled when I saw the headlines, it was obvious to me as a layman that he can be charged. However, this is SA, and he was let off before he became Pres, what chance do we have of him facing his charges now. He might have said that he wants his day in court to clear his name, but I am sure the no one with a brain believed that. I wonder what the DA’s strategy is with this one, from where I am sitting, it would seem that this attempt, although with good reason, might only serve to ostracize the DA even more from the masses. I trust that there is a masterplan.
Judith
Pal, you’re so so jealous. Shame on you.
Oh, by the way, since you seemed to be passionate about dismissing those who represent our political leaders, can I now here you commenting on this:
http://www.timeslive.co.za/local/article472817.ece/The-DA-spends-millions-on-consultants
No wonder SA in such chaos. Almost all big wigs in Government are in court, have been in court or will be in court soon.
Even parties not in government spend their time sorting out a dispute in court. The kind of things we used to resolve over a beer.
If you do wrong you must face the law, whether you are the president or just another citizen. What law protects criminals? Our law perhaps?
I fail to understand why the media so vehemently relies on Pierre de Vos to create public perception. Someone who has never had the courage to step out of the safety of the realm of a Univerity WILL NEVER BE an expert on anything.
Has De Vos ever practiced law?? If so, with what measure of success?? Has he ever handed down a Constitutional Judgment or contributed to the formulation and practice of the letter and spirit of our Constitution?? NO!
This man reads the great words of other South Africans who have through the practice of law ACTUALLY contributed to our Constitution, and then merely surfaces to provide us with his academic view on the Constitution which is a living, breathing document.
He is certainly not in any measure “one of, if not, the leading expert on constitutional law…”
Please use real experts who actually have some practical experience and stop feeding us his academic drivel.
The most serious consequence of this debarcle is that all ANC members believe themselves to be above the law. Sheik lives on. One of our esteemed minister’s drug charges seem to have disappeared. Court cases drag on and on and appeal follows appeal. Travel gate, tender gate, sewerage gate, schools gate, roads gate, Eskom gate, Malema gate, crony gate, nepotism gate, BEE gate, Affirmative Action gate and so on. Its always the public that ends up paying the bills whilst the perpetrators walk free and get promotions and bonuses. Crime pays in South Africa and its getting worse. Constitution – What constitution if we have one sector of the population that are immune to it? Joining the ANC is like getting a vacination as you then become immune to the laws of the land.
“There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive”. That is a sick statement – it is normall for people to have differing opinions but that does not make it right ’cause first you look at what influences the and this case canbe very divisive – a can see De Vos view but it’s dangerous
The rule of law does not, and will NEVER apply to ANC heavy weights. If you look at politics at local government level, these “civil” servants act with impunity and are never punished for corruption, driving under the influence and the list continues. These guys are insignificant ANC appointments in comparison to JZ and they are untouchable. Even malema has not followed court rulings and nothing has been done….
The only way Zuma will be prosecuted or found in a court is if he falls out of favour with the ANC and they allow legal procedures to be followed. But as Metallica have said before, It’s Sad But True.
And in the heart of the ‘Cradle of mankind’. How embarrassing for those few who left the ape grotto to see what else was potting out there…
Either we are all equal before the law….. or some are more equal than others. Either we are a multi party democracy with the absolute rule of law, or we are not. We cannot be one when it suits some of us and the other when that stance is advantageous to a particular agenda.
The argument: “Mr Zuma is the head of the executive and of the armed forces … one arm of the executive cannot act in a manner that paralyses another arm of the executive” is a weak one. It assumes the office and the office bearer are one indivisible entity. The ANC had no problem recalling Mbeki mid-term proving that the Presidents office and the holder of that office are not an inseparable entity when is suits the ANC and the same action would be applied if the state prosecutor rightfully pursued the other party in a corruption case.
If money has changed hands it is impossible for a corruption case to have one guilty party (Sheik) and one innocent party (Zuma) no matter how many legal gymnastics are performed for the nationin an attempt to argue that case.
The right of equality (including before the law) is of paramount importance in our constitution. It is contained in the pre-and the post amlbe of the 1993 interim constitution, as well as in the preamble of the 1996 constitution. Furthermore, equality is the cornerstone of our democracy, both as a right and a value. Any interpretation of any other law must, of essence in promotion of this right.
The president (sitting or standing) has the right to appear and dispute any charge laid against him in court, as well the public has a right to know the truth about its president when there are any accusations levelled against him.
The constitution places a duty on every person(including juristic person) to promote the rights in the bill of rights. This includes a political party.
The danger of our “democracy” is that it is based on the majoritarian past-the-post principle, the majority which is illiterate. Keeping people illiterate therefore guarrantees access to power as long as they believe that you are their messiah. It is unfair to expect different from people who know only the rule by decree (of kings and chiefs).
It is also misleading to impose a world class constitution on an illiterate public that has never experienced democracy, and give an impression that they enjoy constitutional democracy, when they clearly cannot differentiate between democracy and dictatorship by oligarchy.
Maybe the case will be heard or reviewed by the Honourable Justices Mpshe or Goldstone.
The likelihood of the ANC not using hook and crook (especially the latter) to defeat the ends of justice and cover-up one of their cronies is, based on past performance, zero.
Siphiwo – what rant?
Honestly, JZ should be charged based on his obviously corrupt connection to Schaik and the fact that the latter has been tried and found guilty. That said, the saying applies “don’t fart against thunder”! Whilst there is merrit in pursuing this course of action, somehow it may be wiser for the DA to put their financial resources and energies to a cause they can win or even influence. It really is sad to even think along these lines, but the chances of getting JZ charged at this time are Zero, so why waste money, time and energy on a lost cause. Perhaps once he has finished his term/terms (may God help us!!) as president, that may be the time to try again. But right now, the DA would be well to turn away from this thing and use its resources elsewhere.
It is the “duty” of everyone to promote the constitution. This would depend on the capacity (including that of surviving threat). It goes without question that if the DA has this capacity, and fails on this “duty”, it would be in contravention of the constituional obligation.
Our country is in an unfortunate situation of having a so-called “best” constitution in the world which no one bothers to understand, but is hell-bent on extracting what benefits he can get, while trashing it in the process. It is short-sighted and immoral to our contry – which includes future generations – to encourage apathy because of expedience.
If the DA is driven by political expedience, and saves the society in the process, why should we be concerned about costs. I think it is an honorable undertaking to use your own money to fight for the common good against a system that can indiscriminately use poor people’s tax money to defend its graft.
@Rose, it keeps attention on the corruption associated with the arms deal and reminds those in power that this issue is not going away.
Siphiwo Siphiwo,this country will be much better off without YOUR political leaders, they have done nothing to create better conditions for everyone and they have had 16 years in which to do it but guess what, they have stolen public funds for their own benefit, the pigs in the trough again and again and you seem to be paid to protect their image, shame on you Siphiwo you are as bad as they are.
I believe it is all well and good to prosecute Zuma or at least if the DA believes that he was incorrectly exonerated before the election by his equally corrupt cronies for them to attempt to do so. Any other course of action by the official opposition would be dereliction of duty.
The aspect which concerns me is the effects of such a case on the people who vote for him if he were to be found guilty for example. The other thing is who would we get to replace him – would you feel the same way if you believed that Malema might succeed him? I could deal with Motlanthe beig given another shot at the Presidency but I’m not sure that would happen. Who else is there to take over from Zuma apart from Vavi and would the executive allow this to happen? I’d rather have Zuma out in the open where he can be seen than in the background. I can’t help wondering what Thabo is doing in the background.
Leave Zuma alone!!!
He had his day in court. What more do yoy want?
One interesting question is why the DA is going this fifteen months after the Public Prosecutor took the decision to cover up for Zuma. At that time, you may recall, the press was totally in support of Zuma and was in full smear mode about the alleged crimes of those trying to prosecute Zuma. (Most of the smears seem to have come via Zuma’s lawyers, so the lawyers were playing the press like a vuvuzela.)
Was it just that the DA were scared then, or did they want to give Zuma time to royally screw up the ANC, to give him enough rope to hang himself and all his friends with? In either case, principle doesn’t seem to be the issue.
As to the successor to Zuma, the natural successor seems to be Sexwale, who has the money and the white ruling class behind him. Motlanthe might come in as caretaker, but it was noticeable that the ruling class didn’t like him during the half-year that he was running things.
Oh, “momVV”, the problem, for us and for Zuma, is that he did not have his day in court. Owing to the failure of the Public Prosecutor to present a case against Zuma (in retrospect this failure seems to have been wilful) Zuma never had to have his claims of innocence tested. The other problem is that he appears, on the basis of the Shaik trial, to be guilty, and since he has been running away from trial ever since 2005, it seems probable that he thinks he would be found guilty if charged.
No doubt some people have ulterior motives for wanting to see Zuma charged, but that does not mean that he should not be charged.
momVV – When did Zuma have his day in court – i.e. A day on which he was actually tried for the crimes of which he is accused? He had several days in court fighting against having his day in court!!
Tony A – the ANC government has done an immeasurable amount for the people of South Africa – it’s just that they may not have indulged your particular requirements which perhaps the previous government did!
Some people in government are less than desirable, beginning with JZ – but let’s not become blinded, self centred “when we’s” – that really is unproductive and demoralising.
Maybe the opposition should rely less on the courts to achieve for them what they couldn’t achieve during elections. They should work more on their organisation and policy formulation.We all know that the opposition and its supportive media have pronounced that any judge to be seen to be independent must rule against Zuma and the ANC. I wonder how many judges would prefer to be judged not indepedent by the opposition and its supportive media. What hope is there for judges Goldstone and Mpshe to redeem themselves from the opposition and its supportive media.
Rose,nothing to do with the previous,GOVERNMENT,I do not tolerate al the abuse of power, the self enrichment and the lack of achievementt through ineptitude.
where is the ANC achievement you speak of,not in health, the Aids debacle, not in education, not in our security,and many more.These guys have had 15 years at the trough and they have done well for themselves, what have they done for the peope that is tangible Rose ? Some new people must come in now they cannot do worse.
tony a – You shouldn’t tolerate abuse of power, corruption, theft, etc. No one should! However, three million RDP houses is very tangible (please don’t refer to the twenty thousand or so that have had to be brought down) – this government has housed more citizens than any other nation. Electrified townships and tarred the roads there, built clinics, it gives out 13,000,000 grants each month end which is positive for the economy as well as the recipients. Madiba and Mbeki put South Africa and Africa firmly on the world stage in a positive light and we all benefit from that – both are highly respected internationally – they have brought to RSA every single World Cup of Sport – the latest being the greatest show on earth (and the Indian Premier League) – every child can go to school – and YES THERE IS LOTS TO DO IN EDUCATION AND MEDICAL, but give credit….. The ANC government did not take our homes, businesses – they did not take back the land we so ruthlessly took from indigenous people – they have tried to approach this highly complex issue in a decent, sensitive manner – very difficult – I still drink water straight from my tap (a privilege not enjoyed in many other countries even in the West) and walk endlessly on beautiful beaches. We have an incredibly resilient economy that far out played most other world economies – Our tourism industry was one of only two that grew in 09/10 – we have a thriving tourist industry!!????
Thank you for your response Rose, I still do not agree that we must close our eyes to the wrongs perpetuated by the ANC heavy weights, remember the quote,”I was not in the strugle to be poor “, that to me says it all at the expense of everyone else and the country, I still say the ANC have their self interest above anything else.Any other party in Government cannot do worse then what the ANC has done so far, so I say out with them, they have had their chance and messed up.
tony a – no we shouldn’t close our eyes to any injustice or lack of integrity – neither should we close our eyes to the good that has and is being done by the ANC government. Out with corrupt, self serving leaders – out with injustice, greed and crass materialism – lets root it out wherever it is – public or private sector… in South Africa and in the world. The poor stay poor not because of insufficient resources, but because of corruption, crass greed and outright theft by those we should be able to trust.. and those in private business. That said, we don’t expect those who love us to overlook our negative characteristics but we don’t expect them to ignore our good ones either – and so it is with government – good must be recognized and applauded and bad must be condemned and rooted out. Injustice anywhere is a threat to justice everywhere.
Rose the corrupt must be rooted out,condemned,and charged in a court of law,it will happen to you and I but not to the ones in Government and their associates lest half of the ANC land in jail. Do we want these criminals in Government?
tony a – we don’t want corruption anywhere – we want corrupt thieves rooted out, charged and jailed, especially those with a massive direct impact on the lives of the people of RSA. We want to be LEADERS and NOT FOLLOWERS – We want to lead South Africa and the world away from greed (which leads to corruption and theft) and crass materialism (which leads to corruption and theft) and lead it towards valuing THE REAL STUFF OF LIFE – to the values that make us a dignified, respectful, decent, kind people of integrity – a people who expect excellence from ourselves and from those elected to serve us. That is what we want and that is the goal to which every one of us should strive – we cannot expect excellence from others unless we offer excellence ourselves. Problem is the world has moved away from real values and taken RSA with it – it worships at the altar of material goods and self indulgence and our appetite for instant gratification is insatiable – thus we have greed, corruption, manipulation, spin doctoring and downright theft and lies on an unprecedented scale… the well cannot be filled and the end justifies the means – even killing! LET’S BE THE COUNTRY THAT LEADS THE WORLD AWAY FROM WHAT IS ULTIMATELY GOING TO KILL IT – GREED AND CRASS MATERIALISM. We worship gods that can bring us NO JOY, PEACE or REAL PROSPERITY. Let’s change our direction – it is leading us into a hell hole!
Rose, I wish, I wish, I wish.
tony a – we all wish, but lets turn the wishes to reality by starting in a small way ourselves – lets be the change we want to see – it all starts with each individual person and the wave gets bigger and bigger. It begins with you – it begins with me.
If the South African Constitution is an emulation of the US Constitution, as I suspect it is, then Kemp ought to take serious note that under the latter, noone, even late President Nixon, was above the law.
Exactly Michael. This is the incessant irritant that attempts to disrupt, frustrate if not completely derail any sensible crack at successfully running this country by the ANC government. You are not even on the side of the majority. You could be proved wrong today but tomorrow you’ll be up with more of the same. It’s tantamount to sabotage. So what is the government supposed to do with you. Wait until it all comes crushing down and listen to Michael Trapido say “Yes I have been saying it all along. Now for the champagne! Hooray?”