Eusebius McKaiser
PRESIDENT Zuma should be more excited than anyone else in the country about the possibility of soon having his day in court to face corruption charges which he should have faced many years ago already. After all, the president surely imagines himself to be a law-abiding citizen, no?
Zuma should hope that the National Prosecuting Authority (NPA) wastes no further time by appealing Friday’s decision of the High Court in Pretoria to declare the 2009 withdrawal of corruption charges against him by former head of the NPA Mokotedi Mpshe irrational.
All we got so far is a rather dull "noting" of the court’s decision, which is about as useful as telling us that the president had just had his last cup of coffee for the week. Come on Mr President, show some enthusiasm to have your sullied name cleared.
It will be a waste of time and money for the NPA to appeal this judgment because a compelling piece of legal analysis underpins it. The court affirmed the legal principle at the heart of the matter: A wicked motive for prosecuting someone isn’t by itself sufficient to render the prosecutorial decision unlawful if, firstly, there is a case to be answered in law and, secondly, the right to a fair trial that an accused is entitled to is guaranteed.
Mpshe himself never took the decision to discontinue the prosecution of Zuma on these good legal grounds: He never claimed to have been newly convinced that the evidence against Zuma is weaker than he had previously thought and he never claimed that a fair trial is not going to be guaranteed.
No argument was advanced to the effect that the NPA does not have reasonable prospects of prosecutorial success based on the facts before the NPA. It therefore still remains to this day in the public interest for corruption charges to be tested in a court of law.
Similarly, Mpshe never argued that a fair trial for Zuma could not be guaranteed. A fair trial includes appearing before a competent court that can fairly assess the evidence by the lights of the standards developed in our legal system with its built-in accountability features, such as rigorous appeals processes, open court justice and the public scrutiny of the judgment of a court.
If Mpshe lacked confidence in our legal system’s capacity to ensure a fair trial for accused persons, then he presumably would never ever have brought any cases before a South African court in good conscience. That was not his position.
So if the NPA never doubted that it had a winnable case against Zuma, and never doubted that Zuma would get a fair trial, then why would the NPA now appeal this judgment rather than simply reinstating charges?
The only reason cited for the then withdrawal of the charges against Zuma has turned out to be legal nonsense, ie we know what we knew all along anyway – that only examining the motive for prosecuting someone doesn’t settle whether a case should be brought before a court.
Mpshe took a decision based purely on the alleged motive behind the case, and so he had exercised his discretion to discontinue with the case irrationally, and ultimately unlawfully.
This judgment is not inconsistent with section 179 of the constitution, which gives the NPA the discretion but not the duty to prosecute someone. The court is not mandating the charges be reinstated.
But the court is rightly entrenching a good legal norm: The exercise of public power must always be rational. That is what is meant by the principle of legality.
That protects you and me from arbitrary exercising of such powers. The NPA should never be incapable of offering lawful reasons for its decisions.
Unless the evidence of possible corruption has in the meantime been destroyed, there are only bad reasons why a prosecutor would not reinstate the charges against Zuma, such as not wanting to embarrass him as president, or as an expression of gratitude for being appointed by him to a key position in the state, or because you exercise your discretion in a partisan manner and think that the ANC itself may lose political ground if a case against Zuma is resumed.
We cannot play politics when it comes to the NPA.
That would be a fatal blow to the integrity of the prosecutorial authority. It is also not good enough to appeal this case in order to delay the inevitable.
Given how compelling the judgment of the court is, an appeal for the sake of appealing would be vexatious, even if it is permissible in law.
The NPA must simply demonstrate a fearless commitment to treat all citizens equally before the law, including the president.
Failure to do so would irreparably harm the criminal justice system. The political consequences of reinstating the charges against Zuma cannot concern the NPA.