ZUMA’S UNLAWFUL IMPRISONMENT - A BREACH OF SOUTH AFRICA'S OBLIGATIONS UNDER INTERNATIONAL AND DOMESTIC LAW
By: Paul M. Ngobeni
International human rights law in general places obligations on states like South Africa in relation to all people, not only citizens. The Universal Declaration of Human Rights (UDHR), (Proclaimed and adopted by U.N. General Assembly resolution 217A(III), December 10, 1948), the International Covenant on Civil and Political Rights (ICCPR), (adopted by U.N. General Assembly Resolution 2200 A (XXI) of December 16, 1966, entered into force March 23, 1976) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted by U.N. General Assembly Resolution 2200 A (XXI) of December 16, 1966, entered into force January 2, 1976.)-- together known as the "international bill of human rights" because they form the foundation of international human rights law--confer the great majority of the rights they enumerate to "everyone." Clearly that includes former President Zuma as the Concourt appears to recognize.
On 6 August 2021the Constitutional Court’s issued additional directives to the parties in the Zuma rescission application. The Court asked the parties in the Zuma contempt case to make submissions on two issues. First is “whether this Court is obliged to consider the United Nations International Covenant on Civil and Political Rights (Covenant) when construing Sections 12(1)(b) and 35(3) of the Constitution. Second, is if it should, “what implications do articles 9 and 14(5) of the Covenant together with decisions of the Human Rights Committee have on the applicant’s detention?”
The directives further raise extremely disturbing questions about the Court’s implicit admission that it acted in violation of both our Constitution and international law when adjudicating the Zuma matter.
For starters, more than three years ago, I wrote an article entitled “Justice for President Zuma - SA Natives Forum Lawsuit, Friday, April 6, 2018
https://constitutionalcrossroads.blogspot.com/2018/04/justice-for-president-zuma-sa-natives.html . In the context of discussing the applicability of international law and foreign law in human rights interpretation I stated as follows:
The Constitution’s provisions of section 35(3) (d), "the right to a speedy trial", can best be understood in the context of international law and foreign law in South African criminal procedure. Section 39 of the Constitution reads as follow: When interpreting the Bill of Rights, a court, tribunal or forum- (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; (c) and may consider foreign law.
Clearly, section 39 of the Constitution makes it peremptory for South African courts to consider international law and no judge may ignore that willy-nilly. Further, Section 233 of the constitution instructs the courts’ about the proper role of international law in South African national law under the Constitution. It states: ”When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”
It is very important to remember that the right to a trial within a reasonable time frame has been guaranteed in various international law instruments. South Africa has signed and ratified various international treaties and covenants, enacting them into national law through Parliament. The provisions of international and regional instruments such as the International Covenant on Civil and Political Rights article 9(3) which state that "anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to be released” are legally binding on our courts and judicial officers. So are the provisions of the he African Charter on Human and Peoples Rights article 7(1) (d) which stipulates that "every individual shall have the right to have a trial within a reasonable time by an impartial court or tribunal.”
Decisions of foreign courts are instructive in regard to the Zuma case. Our Bill of Rights and constitution are modeled along the Canadian Charter of Rights and Freedoms.
It is mandatory to consider international law whenever a court assumes the duty to interpret the Bill of Rights. Clearly, the fact that the apex court committed such a glaring elementary error in the initial conviction and sentencing of former President Zuma gives further credence to the notion that there is Zuma exceptionalism in the interpretation and enforcement of our laws when it comes to Mr. Zuma and his rights. Section 39 of the Constitution should have been a no-brainer to the judges - this provision codifies the interpretation rules relevant for the interpretation of the South African Bill of Rights. The wording of subsections 39 (b) and (c) suggests a difference in approach to international and foreign law. In the case of international law the court must consider it, and in the case of foreign law the courts may consider it. Though there is a clear difference between the two auxiliary verbs "may" and "must", both of them are linked with the verb "consider", which has a variety of meanings such as to "think carefully about (something)"; to "regard (someone or something) as having a specified quality"; to "take something into account when making a judgement"; and to "look attentively at".[1] The Constitutional Court judges knew that the Constitution imposed that duty on them at every stage where the interpretation of the Bill of Rights is involved. But in Zuma’s case they threw all caution to the wind and arrived at a grossly unjust verdict which sent a citizen to direct imprisonment based on motion proceedings and without the benefit of a criminal trial. There are simple answers to the questions the judges have now posed almost a month after Zuma was incarcerated.
The answer to the Concourt’s first questions lies in the abecedarian reality that the International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the covenant. It is part of international law and South Africa is also a signatory to the Covenant. The covenant commits its parties to respect the civil (liberty and security of person) and political rights of individuals, including the right to life, freedom and security of person, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). So the answer to the Court’s question is in the affirmative and is clearly spelled out in the Constitution.
Our Constitution makes it mandatory, when interpreting the Bill of Rights, that “a court, tribunal or forum- (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; (c) and may consider foreign law. Clearly, section 39 of the Constitution makes it peremptory for South African courts to consider international law and no judge may ignore that willy-nilly. The Constitutional clearly erred in its ruling regarding Mr. Zuma – it claimed that it was dealing with an unprecedented or unique but it never at any point considered foreign law where hundreds of cases dealing with punitive incarceration for alleged contempt have been decided. It clearly violated the Constitution’s provisions that it “must consider international law.”
Further, although the Court specifically limits its inquiry to whether it is “obliged to consider the United Nations International Covenant on Civil and Political Rights (Covenant) when construing Sections 12(1)(b) and 35(3) of the Constitution” Mr. Zuma’s rights provided by these provisions are considerably wider than the Court’s conservative approach. Section 12 of our Constitution is entitled “Freedom and security of the person” states as follows:
12. (1) Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
Based on the express language of the Constitution, it is crystal clear that the provision regarding rights not to be detained without trial was flagrantly violated. Arguably, the other provisions such as the not to be deprived of freedom arbitrarily or without just cause and the not to be treated or punished in a cruel, inhuman or degrading way were all implicated. Our country is in clear violation of both its constitutional and covenant obligations in regard to the manner in which it treated former President Zuma and caused him to be detained and punished without any fair trial. But there is even more astounding violation of Mr. Zuma’s rights under Section 35(3) which guarantees a full panoply of fair trial rights. It provides as follows:
35 (3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f ) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
I would not attempt to analyze in detail how Mr. Zuma’s rights to a fair trial were violated as it would be pointless and futile – there was no trial of any kind whatsoever. Accordingly the violation was complete and absolute.
The second question is framed in very interesting and tantalizing form in that it asks “what implications do articles 9 and 14(5) of the Covenant together with decisions of the Human Rights Committee have on the applicant’s detention?” The answer is unambiguously clear as well. Article 9 of the ICCPR recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[Article 9.1] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[Article 9.4]. Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.
Article 14, like Section 35(3) of South Africa’s constitution contains extensive protections of the accused’s rights to a fair trial. Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[Id.]. These obligations apply to both criminal and civil hearings, and to all courts and tribunals.
Further, article 14 imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. Just like our own Constitution, Article 14.2 establishes the Presumption of innocence and forbids double jeopardy. It requires that those convicted of a crime be allowed to appeal to a higher tribunal,[Art.14.5] and requires victims of a Miscarriage of justice to be compensated.[14.6]. It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.[Art.14.3].
All of these rights were denied to President Zuma. As the minority judgment observed, the right to equality was denied. I have previously observed that:
“It is lamentable that, instead of a legally sound and scholarly judgment, the majority judgment displays all the hallmarks of a political tract verdant with emotion-laden heated rhetoric long on denunciation of President Zuma but woefully short on legal principles and consideration of justice. Not surprisingly, and giving credence to the adage that “a guilty conscience needs no accuser,” the majority starts off with a defensive jeremiad that: “To the extent that the second judgment insinuates that I am creating precedent to punish Mr Zuma alone,57 my Sister is mistaken. I do no more than apply the law, cautiously, to these new and unusual circumstances.” Truth be told, they did exactly that selective persecution and worse – they created a precedent to punish Zuma alone by claiming “unusual circumstances” and then proceeded to find him guilty of a crime and imposed upon him a 15 month jail sentence without a trial. Lest we forget, under Apartheid, Zuma had the benefit of a trial before he was convicted and sentenced to ten years on Robben Island. And yet under the new democratic constitution he sacrificed so much for, he has been sentenced to a determinate jail sentence without the benefit of a trial! See, Shameful Contempt Verdict Against Zuma-Why the Public Was Robbed of Justice? Saturday, July 3, 2021 https://constitutionalcrossroads.blogspot.com/2021/07/shameful-contempt-verdict-against-zuma.html
As the dissenting justices point out, the majority has imposed punitive incarceration on Zuma, departed from the established principle that a court must not adjudicate a matter in which a member of the same court is a litigant and has violated Section 165 of the Constitution by presiding over a case in which the majority judges complain that Zuma has vilified, attacked, insulted and slandered them. That the majority euphemistically characterizes this flagrant violation of established constitutional principles as mere application of the law, cautiously, to these new and unusual circumstances” is truly astounding and tragic. A case of selective persecution clearly exists. Members of the public have the right to protest vehemently and vociferously against such actions by any branch of our government.
In conclusion, had the Court considered the provisions of Section 39 that it “may consider foreign law” it would have realize that its entire judgment against Zuma was unconstitutional and unlawful. It would have paid attention to the admonition of the US Supreme Court in Hicks v. Feiock, 485 U.S. at 621 explaining that “criminal penalties may not be imposed on someone who has not been afforded the Protections that the Constitution requires of such criminal proceedings”. It would have been alive to the principle that the presiding judge is required to make a “conscientious effort” to ensure that the contemnor is not subjected to further civil confinement in the absence of an ongoing and realistic possibility of coercing compliance. Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983). It would have been conscious of the fact that the use of the summary contempt power should only be exercised after considering the following words of the Supreme Court: “Summary punishment always, and rightfully, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes.” Sacher v. United States, 343 U.S. 1, 8 (1952). Ironically, it is not Zuma’s words or alleged conduct that will bring the Concourt into disrepute but the Court’s own angry judgment which was “imposed in passion or pettiness.” Most importantly, it would have been solicitous of Zuma’s right to be tried by an unbiased judge in a public trial, In re Oliver, 333 U.S. 257 (1948); and would have recognized Zuma’s right to a “disinterested prosecutor.” Notice that in Zuma’s case there was no disinterested prosecutor – the Court relied on the submissions of the Zondo Commission in the Motion proceedings.
In Cooke v. United States, 267 U.S. 517, 539 (1925) US Chief Justice Taft uttered some cautionary words to guide trial judges in the use of their contempt powers.
“The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. The United States, 299 Fed. 283, 285; Toledo Company v. The United States, 237 Fed. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”
President Zuma did not have an impartial court and a disinterested prosecutor required for criminal contempt prosecution. In Young v. United States ex rel. Vuitton, 481 U.S. 787, 793–801 (1987) the US Supreme Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id. at 801–802. Still using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id. at 802–08. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id. at 815. Advocate Ngcukaitobi was acting for the Zondo Commission and had no legal standing to prosecute Mr. Zuma for alleged contempt. As the dissenting justices correctly suggested, the matter should have been referred to the NPA for prosecution. Instead, the justices acted as prosecutors and judges at the same time.
Our judiciary is in a big crisis. Justice Frankfurter of the U.S. Supreme Court observed: “‘Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”
The latest blunder from the Concourt proves that our judges are human and may commit mistakes and blunders. Either a rescission application as Mr. Zuma did or vigilant, vibrant public criticism, dignified and responsible, should correct judicial wrongs. With large powers and a considerable level of immunity, judges are apt to turn noxious and culpable at times. Generally our judges strive to maintain a high order of conduct but sometimes aberrations do happen. Therefore, relentless but measured criticism becomes necessary in a democracy. As Hugo Black, a former judge of the U.S Supreme Court, observed: “Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.” In the Zuma case, the judges must swallow their pride, rescind the unjust judgment, offer an apology and release Zuma from prison.
Does President Zuma Have A Right to Effective Remedy in the Form of Compensation?
The numerous international human rights instruments discussed herein recognise the right to an effective remedy for a human rights violation.[1] In other words, a victim of a human rights violation is legally entitled to pursue and obtain an effective remedy. International human rights treaties provide a remedy, both substantive and procedural, for individuals suffering injury from unlawful conduct by State authorities. In addition to the right to an effective remedy for human rights violations, human rights treaties as well as some domestic constitutions, provide for specific provisions for compensation, as in the case of unlawful detention. For example, Sect. 14(5) of the Constitution of Ghana, 1992 provides that a "person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person". Likewise Article 75The Rome Statute of the International Criminal Court (ICC) authorises the Court to determine any damage, loss or injury to victims and order reparations to them.
The same United Nations Commission on Human Rights (referred to by the Concourt in the Zuma matter) gave recognition to the interests of victims of human rights violations by adopting the "Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law". The aim of this instrument is to provide victims of violations (of both human rights and international humanitarian law) with a right to a remedy. State Parties are required to adopt various measures (including legislative and judicial) aimed at achieving the respect, protection and promotion of the rights contained therein. Article 2(2) of the ICCPR obliges States Parties to "take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant [the ICCPR], to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant [ICCPR]." This entails, amongst other things, ensuring that a victim of a human rights violation can and should have his or her cause heard by an independent, impartial, and duly constituted court, tribunal or forum.
That Zuma must be freed from jail is an obvious remedy but we must consider the substantive content of the right to an effective remedy as stipulated in the ICCPR, and articulated by the HRC which has construed this as follows:
Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.
…Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.
United Nations Human Rights Committee Nature of the General Legal Obligation on States Parties to the Covenant (2004).
Compensation and an apology are the only means of avoiding a prolonged and nasty JSC judicial misconduct complaint against the Constitutional court judges for abuse of their contempt powers. We all hope the judges will do the right thing.
[1] See the definition of "consider" in the Oxford Dictionaries (Oxford University Press 2015 http://www.oxforddictionaries.com).
