Academic

Lazarus on Jacob Zuma v National Director of Public Prosecution

By Lawrence Solum

Liora Lazarus (University of Oxford - Faculty of Law) has posted The President, the Prosecutor and the Secular Priest: Corruption, politics and the courts - Jacob Zuma v National Director of Public Prosecution on SSRN.  Here is the abstract:

Like Bush v Gore in the United States, the decision of Justice Nicholson in Jacob Zuma v National Director of Public Prosecution will undoubtedly be seen as a pivotal case in South Africa's political history. The decision stayed the prosecution of Jacob Zuma, the leader of the ANC, and concluded that former President Thabo Mbeki had interfered in the prosecution process. Within a week of the judgment being handed down, Mbeki was forced to resign as President of South Africa. His resignation has led to the split within the African National Congress (ANC) and the formation of a new opposition party. Although the judgment was seen by supporters to have vindicated Zuma in his quest to become the next President of South Africa, his opponents think that he escaped from prosecution for corruption and bribery by a mere technicality. Both of these positions are plausible interpretations of the case in which statements were made as to Mbeki's political interference with prosecutorial authority, but which goes nowhere near exonerating Zuma.

The case was appealed by two parties. Mbeki made an unsuccessful application to South African Constitutional Court on the grounds that he was not given the right to make representations before the court regarding the 'vexatious' allegations of his political interference with prosecutorial discretion. The National Director of Public Prosecutions (NDPP) has been given leave to appeal on 16 grounds, challenging the reading of constitutional provisions, and public law reasoning, regarding the right to make representations before the public prosecutor. The NDPP also argues Nicholson J has breached rules of natural justice by drawing conclusions about the grounds for the decision to prosecute Zuma without giving the NDPP the chance to make representations. At the time of writing, this appeal is yet to be heard by the Supreme Court of Appeal.

Needless to say, there has been widespread political debate about the decision and extensive media attention both nationally and internationally. But what did the Nicholson judgment really say? Given the political furore sparked by the judgment, it is important to look very carefully at the legal questions, notably related to public law, at the centre of the case. It is important also to note just how far the judgment entered into the political fray, and to assess the extent to which this was legally required. This was a complex case, both factually and legally, and what follows is an attempt to render it accessible to a wider audience, both within and outside South Africa.

Full post as published by Legal Theory Blog on November 25, 2008 (boomark / email).