By Carmel Rickard via Legalbrief
Unless gifted with an exceptional memory you may have only sketchy recall of the way former President Thabo Mbeki left political office in SA, and how his recently-departed successor, Jacob Zuma, took hold of it. But one thing most politically aware people at the time will remember, nearly 10 years later, is that a decision by KZN judge, Chris Nicholson, had something to do with both the ANC’s recall of Mbeki and its installation of Zuma.
In a nutshell, Nicholson presided in an application by Zuma for the 2005 and 2007 decisions taken to prosecute him to be declared invalid and set aside. The judge effectively found there had been high-level interference and ‘political meddling’ in decisions on whether to bring corruption charges against Zuma, at the time Deputy President of both the ANC and the country. (Ironically, Zuma is now, many years later, due to face these same charges – though he is still claiming the decision to prosecute him is ‘unfair’ for a number of reasons.) Nicholson found that the decisions to prosecute Zuma were invalid on several grounds and should be set aside.
Capitalising on this judicial finger pointed at Mbeki, at the head of public prosecution and at top level Mbeki supporters, the Zuma faction within the ANC prevailed within the party’s powerful national executive committee and voted to ‘recall’ the President.
Now, for the first time since delivering his decision on 12 September 2008, Nicholson has spoken out, with a spirited defence of that judgment. Retired from the bench, Nicholson is working on a book that deals with his controversial judgment and related issues. In an outline of some of the book’s central points, made available to Legalbrief, he clarifies his intention: it is to ‘defend my judgment and set the record straight’.
Just four months after he delivered that judgment, the Supreme Court of Appeal set it aside, overruling him, in scathing terms. Among other criticisms the court said his judgment went beyond the bounds of what the court was required to decide. The judge decided matters not relevant to the application, and he failed to ‘distinguish between allegation, fact and suspicion’. Nicholson acknowledges the appeal court overruled him and says he ‘respects’ that decision. Then he adds, ‘That said, I am unrepentant and stand by my own decision.’
One of the prompts for his new book seems to be ongoing ‘harsh and strident’ criticism by members of the public and of the legal profession. Letters to the editor with titles like, ‘How do you sleep at night, Judge Nicholson?’, claiming he was directly responsible for Zuma’s accession to the presidency and the corruption that has accompanied it, have obviously angered and frustrated Nicholson. He says a number of ‘myths’ have developed about his findings, none of which seem to irk him more than suggestions that he is soft on corruption and to blame for the looting of state resources during the Zuma era.
He speaks of his ‘total abhorrence’ of the various scandals surrounding Zuma, from enabling the enrichment of the Guptas, to state capture and the Nkandla scandal. ‘In my judgment I said, quoting other authority, that corruption was like a “cancer, eating away remorselessly at the fabric of corporate probity and extending its baleful effect into all aspects of administrative functions”.’
He is also unrepentant for having questioned the decision to charge Schabir Shaik but not (at least not initially) to charge Zuma, for what was essentially the same set of facts. ‘The bizarre charging of Shaik and not Zuma brings to mind the old apartheid days when black women were charged with immorality for sleeping with white men, while the latter were let off scot free. The courts were uniform in their condemnation of such a practice – and for good reason.’
‘What is disappointing is that no judgment apart from mine has commented adversely on this practice in the Zuma/Shaik scenario. If receiving a bribe is more serious (than paying a bribe) it was very strange Zuma was not charged, as the law requires more serious crime to be investigated first.’
Did he let Zuma off all the charges he faced, as the ‘myths’ allege? Absolutely not. I re-read both Nicholson’s judgment and that of the appeal court when I received the ‘summary’ of his planned book. Here’s what he wrote at the time, ‘I must repeat that this application has nothing to do with the guilt or otherwise of (Zuma). It deals only with … his right to make representations before (the prosecuting authority) makes a decision on whether to charge him again. Once these matters are cured the state is at liberty to proceed again’ in its case against Zuma.
In other words, the judge found that Zuma should have been invited to make representations on the planned prosecution. Extending such an invitation was one of the ways to ‘cure’ the problem detected by Nicholson and that led him to rule that the decision to prosecute should be set aside. (The appeal court later found it was not necessary to go as far as ‘inviting’ representations and Zuma was entitled to have his say even without a special invite.)
Nicholson says the most persistent myth was that ‘I decided that because of the political interference Zuma should be acquitted’. Again, there is no suggestion in the judgment that he ‘acquitted’ Zuma. As for the ‘political meddling’ which he said he found in the matter – he proposed a remedy for dealing with it via a solution that he quoted, with approval, from an international case. This case suggested that in such a matter, the ‘remedy for political interference was to remove the prosecution team that was subject to political interference and not to let the accused go free’.
‘After I set aside the charges until the prosecution explained to Zuma why he was not charged with Shaik, the ANC opportunistically recalled Mbeki. It seems probable that the ANC camp opposing Mbeki was looking for reasons to fire him. He was in deep trouble for his arrogance, his part in the deaths of hundreds of thousands of people living with HIV-AIDS, and for his role in perpetuating Robert Mugabe’s reign of terror in Zimbabwe.’
Nicholson’s outline is bulked with quotations from researchers and writers on contemporary SA that, he says, back his finding of political meddling by politicians in the work of the prosecuting authorities. His summary is headed, ‘The sword is mightier – the alleged independence of the national prosecution authority.’ It’s a follow-on from the theme developed in Nicholson’s initial judgment, and one that he still sees unfolding in contemporary SA: ‘the fight between presidents and the national prosecuting authority for supremacy.’ (It was one of many issues on which he was criticised by the appeal judges, who said, in effect, that he exaggerated the insulation required between the executive and the prosecuting authorities.)
Clearly, his experiences as a legal activist under apartheid sensitised him to the serious abuses resulting from a politically-aligned prosecuting authority, one willing to prosecute for political gain or to silence opponents of the apartheid system. That experience in turn shaped the concern that runs like a theme through his judgment and this summary of his new book: an independent prosecuting service should be an essential, non-negotiable feature of SA’s constitutional era. In his Zuma judgment Nicholson wrote that it was a matter of ‘grave concern’ that ‘this process’ (political interference by state officials in the decisions of the prosecuting authorities) ‘has taken place in the new SA, given the ravages it caused under apartheid’.
He also wrote in his judgment that the only way to ensure the independence of the director of prosecutions ‘is to make appointment and dismissal on the same conditions as that of a judge. If security of tenure and independence is not assured and he or she can be suspended by the executive, the whole legal process is in serious jeopardy’.
Nicholson clearly does not share the view of some critics who say his judgment was an example of judicial activism gone too far. Unrepentant, he writes that if only his suggestion of how to ensure an independent prosecuting authority had been followed, ‘all the scoundrels that have beset our young democracy’ would have been charged and tried, and SA would have been ‘spared the tragic consequences we have endured’.
Disclaimer: In 1985, Rickard was an applicant in a significant case on detention and security laws spearheaded by Nicholson in his then-capacity as head of the Legal Resources Centre in Durban.