Our leaders need to understand they are meant to be guardians of the constitution rather than use it for their own ends, writes Nicole Fritz

Much of the commentary on the Jacob Zuma judgment handed down early this week would have you thinking that the case concerned Judge Chris Nicholson, who delivered the initial judgment in respect of Zuma’s challenge to the decision to prosecute him ­ a judgment which in the public mind, at least, appeared to trigger the vanquishing of Thabo Mbeki.

That is hardly surprising. The case proper turns on rather dry, technical questions: as to whether the decisions to prosecute Zuma amount to a review of an earlier decision not to prosecute him; and that if they did constitute a review, whether he was required to be invited to make representations.

Alternatively, the case asked whether he had a legitimate expectation that such an invitation would be extended before any decision was taken to reverse the earlier decision not to prosecute.

Far more attention-grabbing than the answers to these questions was the censure that the Supreme Court of Appeal directed at Nicholson. And while that censure might have been over- emphasised and exaggerated in media reports, the judgment is still notable for the lengths to which it goes in directing criticism at the lower court .

In fact, it might be said of this appeal court judgment, which repeatedly points to what it calls “gratuitous” aspects of Nicholson’s judgment, that it too is gratuitous, at least in respect of its criticism of the court below.

Certainly, if the Appeal Court believed, as it explains, that Nicholson failed to adhere to some of the basic responsibilities of a judicial officer, it might have communicated those concerns through the internal channels of the judiciary and not sought to engage in public chastisement by means of its judgment.

Instead, the Supreme Court of Appeal need only have clarified in its judgment that it believed the court below had erred in its approach.

Chief among the Supreme Court of Appeal’s complaints is that Nicholson transgressed “the proper boundaries between judicial, executive and legislative functions”, and that he had impermissibly used his judicial office to express political preference.

Yet, as every law student learns, the distinction between law and politics, or between the judicial function and the executive or legislative function, is often very far from obvious, and where that line is drawn is more often the product of ad hoc determination than any settled formulae.

Doctrines and theories, such as the political question doctrine and the counter-majoritarian dilemma (describing the difficulties that arise when decisions of a democratic majority are reversed by unelected judicial officers), are meant to assist courts in steering a course through the permissible seas of law and avoiding the impermissible seas of politics.

But in truth, these doctrines more often beg the question than provide clear guidance, and for every case in which they are invoked, there is another in which they are ignored.

And if law and politics are sometimes indistinguishable, at other times law unambiguously usurps the role of politics.

One of the central justifications for the inclusion of basic human rights and civil liberties in a constitution is that their protection cannot rely on the political process ­ minorities deserving of such rights may have insufficient support to secure the realisation of these rights for themselves. Law, at least in this arena, is very explicitly intended to cure the deficiencies of the political process.

Admittedly, these deficiencies are thought to be true of every political process. But at the time Nicholson made his judgment, there appeared many deficiencies peculiar to the South African political process that urgently demanded cure.

Only recall the disparate treatment of suspended national police commissioner Jackie Selebi and that of Vusi Pikoli, the national director of public prosecutions.

Or the fate of the Scorpions, or the credible allegations of widespread involvement of political leaders in the arms deal, or the all-too-visible splintering within the African National Congress, and you get a sense of just how much crisis our body politic appeared to be in.

Of course, Nicholson did not address all these issues, but that he, for instance, responded to the fairly absurd request from the incongruously named Society for the Protection of our Constitution ­ a front for Zuma’s friends ­ that he order the appointment of a commission of inquiry into the violation of Zuma’s rights, with the suggestion that a commission of inquiry be appointed to investigate the arms deal and so “rid our land of this cancer that is devouring our body politic”, hardly seems extreme.

It is from this same impulse ­ a lamenting of the impoverished state of SA’s political life and the resulting shirking of moral and legal responsibility ­ that several of Nicholson’s most notable judgments, for which he has been rightly commended, have sprung.

In 2006, Nicholson held in the face of the government’s refusal to provide treatment to prisoners with HIV/AIDS, despite a court order requiring them to do so, that “if the Government of the Republic of SA has given such an instruction (not to comply with the case) then we face a grave constitutional crisis involving a serious threat to the doctrine of separation of powers.

“Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench.”

Arguably that statement too might be criticised as going beyond what is strictly required of a judge.

But at the time it was widely heralded as a good faith attempt by Nicholson to draw attention to the magnitude of the threats to our constitutional system.

In the course of its judgment, the Supreme Court of Appeal charges that Nicholson “changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators”.

The soccer analogy seems particularly apt, but if there is censure to be directed it is perhaps less deserved by a judge required to act as referee than by those politicians who would use our courts and legal process as football fields.

If the Zuma judgments do not represent the judiciary’s finest hour, it is because our political leaders would use the judicial process for their own narrow ends.

Recent examples serve as illustration: during the recent Supreme Court of Appeal proceedings, Zuma vigorously opposed the application by Mbeki and other members of his cabinet that they be permitted to intervene in order to challenge the aspersions cast on them by Nicholson’s judgment.

But, as the court noted, Zuma “had no legal interest in upholding the denigration of the applicants and in opposing the intervention because it did not affect the order he sought to uphold”.

Still, he did so because he had distinct political interest.

In response to the judgment, Mbeki has rather disingenuously *1 announced that the Supreme Court of Appeal ruling “vindicated us”. However, as constitutional law expert Pierre de Vos correctly points out, “problem is, only in the broadest sense of the word has the Supreme Court of Appeal ‘vindicated’ Mbeki and his cabinet.

“The judgment decidedly did not find that there was no political meddling in the Zuma prosecution and merely said that there was not sufficient evidence before the court to make such a finding.”

Now Zuma’s lawyers approach the Constitutional Court in order to appeal the Supreme Court of Appeal judgment, seeking one more judgment to fill the law reports, which the court notes are already “replete with judgments dealing with the matter”.

And you can be sure that if there is no relief to be found there, Zuma will attempt further legal bids to avoid facing criminal charges. Already some advisers suggest that he may argue that the delay in bringing him to trial negates any possibility of a free and fair process ­ as if much of that delay has not been occasioned by his own efforts.

Is it too much to hope that we have political leaders who understand that they, too, are guardians of our constitution and constitutional structure ­ that it is not a role reserved only for our courts ­ and that they not seek to put the constitutional process in the service of their own political ends?

Fritz is the director of the Southern Africa Litigation Centre and writes in her personal capacity.

With acknowledgements to Nicole Fritz and Business Day.