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Umsebenzi Online

Volume 7, No. 13, 6 August 2008

In this Issue:


Red Alert

Justice is indivisible

Blade Nzimande, General Secretary

Since about 2003, especially after that notorious statement by the former head of the NPA, that there was a prima facie case (of corruption) against the President of the ANC, Jacob Zuma, but the case was not winnable in court, one of the most unjust, public character assassination of an individual in recent memory was unleashed on Cde Zuma. This was immediately followed by the secret press briefing held with hand-picked black editors; a briefing that practically embedded most of South African media to the NPA, especially on matters relating to Cde Zuma.

This has given rise to some of the worst and most blatant disregard, if not perversion, of the basic precepts of our constitutional dispensation. The most serious perversion of the principles upon which our constitution is founded has been that of seeking to treat the manner in which criminal investigations are handled as separate from, and not part of, our justice system. In this sense justice is simply reduced to court processes. The calls, falsely attributed to Cde Zuma, for him to have 'his day in court', have blatantly ignored the extent to which he has been subjected to an unfair investigation, as if justice is only dispensed at the point of appearance before a court of law.

The SACP re-affirms its total commitment to protecting and upholding our constitution at all times, and that everyone is equal before the law. To this end our constitution, and the structures of the criminal justice system including the judiciary, must be defended and respected by all. Whilst we maintain our firm commitment to the principle that no one is above the law, this precept should equally apply to the institutions of our criminal justice system that they, including its officials, are also not above the law, and therefore cannot act outside the prescriptions of our basic law.

To fight for the respect of our institutions of criminal justice however does not mean that these institutions are sufficiently transformed and will always act in the best interests of all in society. They need to be transformed. For us, the appointment of blacks and women (as prosecutors, judges, high ranking police and judicial officers, etc) is a necessary but not sufficient condition for the transformation of the institutions of our criminal justice system. A fundamental requirement for total transformation is the building of a legal dispensation whose values and practices advances the basic goals of our democracy, tackling class, national and gender inequalities in our society.

There is therefore no contradiction between a fair and impartial judicial system, and its orientation and bias towards advancing these fundamental goals of our revolution. In fact the fundamental condition for a fair justice system is its transformation. In other words it must be a justice system that is not oriented towards elites and their agendas, but a justice system that prioritises the advancement of the poor, the marginalised and to eradicate all vestiges of apartheid and unequal (class) access to basic human rights and the legal system itself.

An even more fundamental requirement in simultaneously transforming and protecting our constitution and the criminal justice system is vigilance on the part of our people to ensure that this system is not abused or used towards goals that are at variance with its intended objectives.

There is also a disturbing trend, especially around matters relating to the President of the ANC that of elevating 'the interests of justice' above the fundamental rights of individuals as contained in our Bill of Rights. For instance those who have been arguing for Zuma to have his day in court have been conspicuously silent on the very serious abuse of the NPA in handling its investigations against Cde Zuma. This is seemingly informed by a dislike of Zuma, especially by sections of the elite, and for them abuse of his rights becomes tolerable because, according to them, Zuma is not fit to be President of the ANC or our Republic. This is an extremely dangerous attitude, which can only take this country to the brink, and become a justification for all sorts of violations. This will come back to bite us in the future.

For example it is interesting, if not curious, as to why a senior member of the ANC, like Prof Kader Asmal, would launch a civil rights movement only in response to many legitimate criticisms levelled at some of the behaviour by elements within our criminal justice system. Yet there was no such movement formed in response to the very many blatant violations of Cde Zuma's rights as confirmed by, amongst others, the Public Protector and the judgement by Judge Msimang. Frankly there can be no genuine civil rights movement based on a fragmented and selective approach to fundamental matters of justice and abuse of human rights. The best that such a movement can be, will not be a civil rights movement for the mass of the people of our country, but a movement for the elites, who are clearly disgruntled about the outcomes of the ANC's Polokwane conference.

Before one gets accused of being conspiratorial and intolerant of different views within our movement, let's examine Cde Kader Asmal's own past consistency on the principles upon which he purportedly now wants to found his South African version of the Irish 'civil liberties movement'. When President Mbeki openly denied that HIV causes AIDS, Kader Asmal was completely silent on this. Where was his activism to protect the constitution and right to life of the main HIV/AIDS sufferers in our country? When the SACP and COSATU were publicly mauled for a different view on HIV /AIDS, where was this great, 'civil liberties' activist. Loudly silent! When Ramaphosa, Sexwale and Phosa were accused of plotting against President Mbeki, where were was Asmal? When Mugabe and ZANU-PF started degenerating into a military machine against the people, what did he say? Nothing!

AAsmal tells us, through the Sunday Times, 'Not to speak is to speak. Not to act is to act.' We completely agree and that is what he did on these matters that are of fundamental importance to our constitution and the human rights of the overwhelming majority of our people.

This blatant selectivity in approaching matters of justice and human rights is also manifested in Raymond Suttner's diatribe against the leadership of the tripartite alliance. For instance Suttner projects the Alliance secretariat as an embodiment as 'harmful voices', yet the likes of Suttner were completely silent when the real harmful voices on Aids denialism and attack on Phosa, Ramaphosa and Sexwale were dominant!

Suttner boasts in the Business Day that he never asked anything from Mbeki, yet when he was appointed South African ambassador to Sweden, at his own request (!), around 1996/7 he kept comfortably silent against the really harmful voices adopting GEAR; the harmful voices accusing Ramaphosa and others of conspiracy and the really harmful voices of aids denialism from some of those who appointed him. What did he say? Where was his own voice? Comfortably silent as an ambassador!

How do we explain this long lapsed but suddenly renewed post-2007 activism of theirs, in the light of the need for revolutionary consistency on matters of justice and human rights? The answer is that the target and anger is directed at the new ANC leadership, especially President Zuma, and the current SACP and COSATU leadership, which dares to consistently articulate working class interests, especially if these are outside the patronising intellectual guidance and self-righteous arrogance from some self-annointed 'intellectual custodians' of our revolution.

The SACP is also deeply concerned about the fact that Cde Zuma has been a subject of a 'dual' investigation by the NPA, one an official, unending, 'criminal' investigation, and through an illegal intelligence gathering process, as shown by the Special Browse Mole report. It was for this reason that the SACP took the trouble to request the Parliamentary Joint Standing Committee on Intelligence to investigate this matter, and found that what the Scorpions were involved in was illegal.

The NPA has colluded with elements in the media to also ensure that Cde Zuma is tried and condemned in the court of public opinion.

For justice to be seen to be done, it is also important for government to take decisive action to promote justice, especially in areas of its own competence. I am afraid government has a lot to answer for when it comes to lack of action on many fronts where the NPA has abused its authority. For instance, nothing that we are aware of has been done about the 'prima facie' statement, the recommendations of the Public Protector and the Hefer Commission on press leaks by the NPA, and now on the Special Browse Mole, almost a year after we were promised decisive action.

The SACP has consistently raised its serious concerns about the abuse of Cde Zuma's rights, not only for the sake of Zuma as an individual, but as part of the struggle and the necessary vigilance to protect the rights of all South Africans.

It is for this reason that we must all, as South Africans, fight for our constitution to be upheld consistently and not selectively, as justice is indivisible! For these reasons the SACP calls for an open and transparent process, involving our people, into any investigations into our criminal justice system.