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By Blade Nzimande, General Secretary

In an article in the Business Day recently, the National Secretary of the YCL raised an important matter about how the media has been handling the question of the rule of law. The SACP has consistently insisted that the question of the rule of law needs to be approached in a holistic manner, understanding the racial, gender and class context within which it is applied. The media's disregard for this is particularly glaring in the manner in which it has approached the allegations of corruption against the Deputy President of the ANC, Cde Jacob Zuma. The one-sided manner with which the rule of law has been approached by media could undo the very rule the media claims to be defending.

The role of the media in this regard needs to be thoroughly interrogated and debated.
The SACP has consistently said that no one is above the law, and that organs of justice should perform their role without fear or favour. However, at the same time, the rights of persons must be respected and institutions must act in a manner that is above reproach.

Let us go to the beginning of the current Cde Zuma 'issue' to illustrate the one-sided way media has approached the rule of law.In 2004, the Public Protector's key findings and recommendations in respect of the complaints by the Deputy President against the National Directorate of Public Prosecutions (NDPP) were as follows:

The Prosecuting Authority is also accountable to Parliament for its decisions regarding the institution of prosecutions; 

  • The Prosecuting Authority is accountable to Parliament in respect of the exercising of its powers and the performance of its functions and duties;
  • The Minister and the National Director were constitutionally obliged to cooperate with the Public
  •  Protector in the investigation of the complaints of the Deputy President;
  • The reluctance and failure by the Minister and the National Director to cooperate with the Public Protector in the investigation was improper and unconstitutional. It resulted in the Public Protector having to conclude the investigation without the benefit of proper responses by those implicated by the complaints of the Deputy President;
  • The press statement made by the National Director on 23 August 2003, that there is a prima facie case of corruption against the Deputy President, but that he would not be prosecuted, unjustifiably infringed upon Mr Zuma's constitutional right to human dignity and caused him to be improperly prejudiced;
  • The press statement (announcing a prima facie case without charging) was unfair and improper;
  • The Deputy President had probably not been informed by the Minister and the National Director of the criminal investigation against him shortly after it commenced, as was publicly claimed by the National Director;
  • As the Minister was replaced in the Cabinet after the 2004 elections, it would serve no purpose to make any recommendations to Parliament in regard to his improper failure to cooperate with the Public Protector.
  • The provisions of section 31 of the NPA Act that established a Ministerial Coordinating Committee have not been implemented.
  • The steps taken by the President to attend to the remarks made by the Hefer Commission in regard to the leaking of confidential information by the Prosecuting Authority should be commended. The recommendations made by the investigators and the instructions given by the President in this regard, are supported.'

The Public Protector went further and made some important recommendations arising from these findings:
'In terms of the provisions of section 182(1)(c) of the Constitution and section 6(4)(c)(ii) of the Public Protector Act, it is recommended that Parliament take urgent steps to:

Ensure that the National Director and the Prosecuting Authority are held accountable, by virtue of the provisions of sections 41(1) and 181(3) of the Constitution and section 35 of the National Prosecuting Authority Act, 1998, for:

Failing to cooperate with the Public Protector in the investigation of the complaint of the Deputy President;
Infringing upon the Deputy President's constitutional right to human dignity and thereby causing him to be improperly prejudiced; and acting in an unfair and improper manner in regard to the Deputy President.
Ensure that the Ministerial Coordinating Committee contemplated by section 31 of the National Prosecuting Authority Act, 1998: Convenes as a matter of urgency; and determines policy guidelines in respect of the functioning of the Directorate of Special Operations that would prevent a recurrence of the improprieties referred to in this report'.

Media coverage of the allegations against Cde Zuma almost never refers to these very serious findings and recommendations by the Public Protector. Instead, there has been a one-sided emphasis on the rights of organs of justice to apply the law, and very little about how these institutions have in the process conducted themselves. It has been this one-sided emphasis that has also fuelled the perception of the existence of a political conspiracy against Cde Zuma, and the media, through acts of commission and omission, has also fuelled this perception.
There is an interesting pattern in the manner in which the media has responded to those raising the other side of the rule of law, that some of the organs of justice have, in this instance, seriously violated the rights of Cde Zuma. Firstly, the media, together with some of its favourite so-called independent analysts, has now coined a new term for those who have been raising these matters, 'Zuma supporters'. In other words, to point at the dangerous precedent that might be set by what the Public Protector referred to as the infringement of Cde Zuma's constitutional right to human dignity and 'caused him to be improperly prejudiced', is dismissed as a political stance.

The media seems not to realise the dangers of reducing such an important matter of the rule of law to political support for Cde Zuma. This has been an attempt, intentional or otherwise, to scare people and organisations from raising this aspect of the rule of law. Some of the 'independent' analysts, like Aubrey Matshiqi, have even gone to the extent of referring to those raising these matters as representing 'a coalition of the irrational'. And, of course, as a further scare tactic, some of those who have consistently raised this have earned the titles of 'Mampara' or 'Moegoe'.

Of late, the media has painted the SACP and COSATU as 'Zuma supporters', largely for raising these dimensions of the rule of law. This is an attempt to pit the ANC against its allies. This is despite the fact that the ANC NGC and the Alliance 10-a-Side meeting of 24 August 2005 clearly affirmed and reaffirmed their support for Cde Zuma and for his dignity to be protected. Other rented analysts in their regular flights between New York, Lagos and Johannesburg seem to have rich imagination about why our Alliance should break, directly arising out of this matter.

Another example of how the media has failed to do what it claims to be its 'watchdog' role relates to how it has handled some of the matters emanating from the Hefer Commission. On pronouncing on the leaks to the media from within the NDPP, Hefer, inter alia, made these observations:

'However, I find Mr Maharaj's evidence most disturbing. As I have already said, it is beyond doubt that leaks did occur. I have also indicated that it is highly likely that the guilty party was within Mr Ngcuka's office and we have it from Mr Ngcuka himself that he or she could not be traced. Such a state of affairs of affairs cannot be tolerated.

In a country such as ours where human dignity is a basic constitutional value and every person is presumed to be innocent until he or she is found guilty, this is wholly unacceptable. Section 41(6)(a) of the Prosecuting Authority Act was not enacted for nothing and as long as someone in the National Director's office keeps flouting the prohibition against the disclosure of information, one cannot be assured that the Prosecuting Authority is being used for the purpose for which it was intended.'

Again, these are very important observations and conclusions by the Hefer Commission. The media has not followed up on what has been done about these observations and conclusions. Perhaps in this case it might be understandable that the media would not be interested in measures being taken to prevent leaks because it suits the media to get information through unidentified sources. But that is precisely where the gravest threat to the rule of law comes from, turning a blind eye to leaks, even if in the process such leaks violate the constitutional rights of individuals, thus undermining the very justice system the media claims to defend.

A much more fundamental question is raised by this: is there not a fundamental conflict between scrupulous defence of the rule of law and media's rule of protection of sources? Is this not an area where the rule of law may ultimately be eroded?

These acts of commission and omission on the rule of law can produce the opposite of what the media claims to be defending, the erosion of the confidence of millions of South Africans in our new institutions of justice.

Incidentally, on a matter we shall raise at an appropriate time, there is no evidence that the media or its analysts have followed up on whether any of the recommendations, conclusions and observations of both the Public Protector and the Hefer Commission have been attended to. A question might as well be asked as to whether these have also contributed to the growing perception of a political conspiracy against Cde Zuma? Is it therefore not justifiable to suspect that the media itself has actively fed into perceptions of a conspiracy, through their acts of commission and omission?

The 1994 democratic breakthrough was a direct result of decades of revolutionary struggle, led by the ANC and its allies, with the working class as its bedrock. It was premised on the values espoused in the Freedom Charter, including the establishment of the rule of law from the ashes of the criminal apartheid system. Thousands of ordinary workers and the poor laid down their lives to achieve these objectives, many more maimed, jailed and exiled.

It is therefore important that the mass of the people themselves, and the organisations that fought for the establishment of this rule of law, are vigilant in ensuring that this rule of law is defended, and that organs of the justice system are held to account.

Unfortunately, the media seems to have been dealing with the rule of law very selectively. Failure to be vigilant runs the risk of taking the fight against corruption 11 years back. One would have expected the media, if neutral as it claims, to uphold the rule of law in its totality and in all of its dimensions. Instead, sections of the media have even gone further to use 'independent' analysts to try to focus on aspects of the rule of law in a manner which suits some of their agendas. This 'rent an analyst' practice also runs the danger of undermining the very necessary public debate and analysis brought about by the 1994 democratic breakthrough.

All these matters underline the necessity for a sustained struggle for the transformation of the media. A lot has changed in the newsrooms, including the appointment of black editors by a number of media houses. The SACP welcomes these changes, but they are not enough. It underlines the point we have consistently been making in relation to black economic empowerment as well, that changing the racial and gender profile of our economy is a necessary but not sufficient condition for transformation. Having black editors is a necessary but not sufficient condition for transformation of media in South Africa. We need to ensure that these institutions are guided by the values and practices of our hard won democratic constitution, in words and in deeds! Otherwise they shall forever remain prisoners of the values reflecting their capitalist ownership, some by companies created by the apartheid regime.

We must therefore congratulate the Harold Wolpe Memorial Trust, in conjunction with the Wits University Sociology of Work Project and the Edge Institute, for creating a platform to debate some of these matters. The debate on the role of the public broadcaster will take place today, 7 September 2005, at Constitution Hill. We urge you to attend, and to call for more such forums to be established

Alliance Statement
Statement of the Alliance 10-a-side meeting held in Johannesburg, 24 August 2005

The Alliance 10-a-side, made up of the national leaderships of the ANC, SACP, COSATU and SANCO met to discuss matters relating to the charges brought against the ANC Deputy President, and the ensuing developments. The meeting was characterized by frank, fruitful and constructive discussions.  

In approaching these matters our Alliance is guided by the principles of our movement and the principles that underpin our democracy, which we are collectively committed to upholding. Our point of departure was that the unity of the ANC and our alliance is of paramount importance. The meeting recognized and agreed that this matter has caused deep hurt and outrage in all of our formations and that therefore we need to find a common approach in handling it. We are the only formations capable of leading our national democratic effort to continue with the transformation of our country. 

Guided by these principles, the Alliance therefore agreed on the following: 

Reaffirming our support for ANC Deputy President, Cde Jacob Zuma  
The Alliance reiterates that Cde Zuma continues to enjoy the full and unreserved support of the Alliance and each of its component organizations and members. The Alliance meeting further endorsed the decisions of the ANC NGC on the place and role of the ANC Deputy President. We particularly endorsed the decision that the collective and individual leaders of our movement must be respected at all times. In this regard the meeting also agreed that the President and the Deputy President of the Republic must be accorded respect and be supported as leaders of our country. 

The Alliance reiterated its commitment to the upholding of the rule of law, the supremacy of the South African constitution, the principle of presumption of innocence, and the need for state institutions to respect the rights, dignity and integrity of all citizens. 

The Alliance meeting urged Cde Zuma's lawyers to approach the state to cover the costs of his legal defence, since he is facing allegations that emanate from his role as a public office-bearer.

Raid at the home of Cde Zuma 

The Alliance disapproves of the highhanded search and seizure operations at the homes of ANC Deputy President, including his lawyers' offices. This is inconsistent with the NPA Act, which urges that the Scorpions must perform its duties fearlessly but with sensitivity to privacy and the dignity of the affected persons.

We are also concerned about the manner in which the media appears to have been co-ordinated to ensure public ventilation of even the details of the search and seizure operations.

The Alliance Secretariat will officially communicate all these complaints and concerns to the National Director of Public Prosecution. As the builders of this democracy we will continue to support and respect institutions of democracy, even as we continue to transform them so that they reflect the values underpinning our democracy. 

On the way forward

Accordingly, the alliance partners dealt with a range of perceptions emanating since the developments on the Jacob Zuma matter and agreed to continue assessing the basis of these perceptions which have not helped the common unity and purpose of the movement. 

The Alliance meeting agreed that the management of the fissures created by developments around the ANC Deputy President is a priority, and we are committed and confident that collectively we will resolve all these. The meeting agreed that another 10 a side meeting will be convened in the coming weeks to discuss a range of other political matters of common interest. In particular, to continue discussions and exchanges around the outcomes and resolutions of the ANC NGC, SACP Special National Congress, and the COSATU Central Committee.

We further agreed that many of the resolutions taken in these important gatherings provide a very firm foundation for further consolidating common alliance perspectives on the challenges of transforming our country.
The Alliance will also receive a report on the preparations and discussions towards the National Congress of SANCO, to be held in December 2005, as part of ongoing consolidation of our common perspectives and approaches to all matters facing the transformation challenge in our country.

COSATU also formally tabled its CC resolution on the matters relating to the Deputy President of the ANC. It was agreed that further engagement is required on these COSATU CC resolutions, within the context of the overall discussions of the resolutions of national gatherings of the other partners.
Issued by
Alliance Secretariat
25th August 2005

Whose Rule of law?
By Buti Manamela, National Secretary (YCL)

What is respect for the rule of law? To who does this respect of the rule of law apply?
Since what the media has dubbed the 'Jacob Zuma Affair' began, we have been dared to 'respect the rule of law'.

This has been because we have challenged the demeanour of certain fragments of the justice system, and the YCL is no exception to this.

When judge Hilary Squires passed judgement on Schabir Shaik we said 'that the Judge only found Shabir Shaik guilty, and not Jacob Zuma', and went further to say that 'the calls for Zuma's resignation smacks of opportunism and should not be heeded to''

We went further to express the manner in which we were 'perplexed that the Judge lengthily drew the Deputy President into the whole case' falling into the trap of the prosecution team 'we believe[d] that the Judge played politics, rather than justice'.

The YCL had officially made these statements because, as indicated in a subsequent statement, 'that until due processes of the law have been completed, he [Jacob Zuma] remains innocent.'
This is the rule of law we are going to respect.

Those who made the calls for the respect of the rule of law have insisted that the ANC and its allies should ensure that they do not interfere with the legal processes as enshrined in the constitution.

Our concern is that this call is made with great expediency, depending on the circumstances around certain incidents and also predisposed by the interests that the individuals or organisations have.

To the Democratic Alliance (DA), respect for the 'rule of law' means that if the Scorpions go around flaunting guns at Zuma's house means the VIP Protection Unit should compromise their principal and not confront the Scorpion over turf.

In the media, reverence for the 'rule of law' to some means that the National Prosecutions Authority (NPA) may leak investigation information about the subject of their investigation, and that they can build a public acuity around the guilt or innocence of this individual.

For the NPA respect for the 'rule of law' means that they can allow the Director of that body to say publicly that there is a prima facie case against Zuma but that they will not charge him.

It may also mean to them that they can express their disrespect publicly towards the Public Protector should he rule otherwise against them.

Many in the court of public opinion castigated both the YCL and the ANCYL for having called Judge Hilary Squires a former Apartheid Judge, ex-politician (as Minister of Defence and Justice respectively) in Rhodesia and also criticised him for having 'effectively found Jacob Zuma guilty whilst he was yet to go to court.

All these matters of fact about his personal history, and the prospect that he may have had his own bigotry towards Zuma given that they were on opposing ends during Apartheid remain uncontested.

We were told to 'respect the rule of law' because we have the best constitution in this country which needs no political interference.

 Who then shall speak of political interference by the media, the justice system or the Scorpions?

Opportunists of all kind have forgotten that in like manner that the judiciary is independent from the executive and parliament, it remains responsible to the public that it serves. In the same manner, the very same judiciary has a responsibility of public criticism. This has happened before and never has the defenders of the 'rule of law' came out so loudly as with the Zuma case.

Shortly after the arrest of the Thatcher Detachment in Zimbabwe and Equatorial Guinea, the DA had an engagement with the Minister of Foreign affairs, requesting that she ensures those arrested are returned to the country and are tried on our laws.

All of a sudden they were against the death penalty, even if it is the 'rule of law' in both of those countries, when they shout here at home over the rooftop about 'bringing back the rope'.

In our instance we should like air heads accept the rule of institutions who preside over our lives, set laws through precedents although un-elected and may take the slightest opportunity to abuse their holy powers without us calling on them to uphold the rule of law.
Where has the DA and the propagators of the 'rule of law' been when information on the investigation of Zuma is leaked to the media, breaking the basest 'rule of law' they should know about?

Where were they when Zuma was declared guilty through a political trial conducted in the media, and is now going into court to prove himself innocent?

All that we asked for, is that Zuma should be treated as per the requirements of the rule of law, and that, like all of us, should be treated as innocent until all due processes of the law takes place.

The very same attitude goes for corruption. All through the tabloid lines of newspapers calls from the YCL, South African Communist Party, Congress of South African Trade Unions, ANC and ANC YL called on for Zuma to receive a fair trial, we are labelled as defenders of corruption.

These usual lines have then been followed by the fact that, by critiquing any act that deprives him this right is tantamount to disrespecting the rule of the law.

This has come from those who claim to defend the rule of law, and have are not prepared to defend the rule of law as it comes to 'innocence until proven guilty'

The explanation to this can be that the tabloid lines and the talk show callers have concluded that Zuma is guilty and that calls for him to have a free trial are indistinguishable from defenders of corruption.

We all have the responsibility to defend the 'rule of law', by all and sundry, including those who prosecute, defend and judge without any fear, favour or prejudice!

 This is not only the duty of all those who want to see Zuma cleared in a fair trial.