The ANC laid a charge accusing him of the crime earlier this week after he told an Al Jazeera journalist he would remove the ANC government “through the barrel of a gun” if more people were killed by security forces during service delivery protests.
He warned the ANC against pushing the EFF too far. The chilling utterances angered the ruling party, but were immediately reiterated by EFF MP Floyd Shivambu during a community meeting in Alexandra, just a day after the ANC laid the charge.
The case was later handed over to the Hawks. But criminal law expert Cliff Alexander told The Citizen that without proof Malema actually intends to physically overthrow the government, there was not enough evidence for so much as an arrest.
“If you look at a previous case of high treason, where the right-wingers who were on trial and are now in jail, you can see that it wasn’t just an idle threat. They were convicted and sentenced because they actually had arms and ammunition, so the proof of intent was there. With the EFF, there is nothing.”
He was referring to the 2014 judgment in which a group of right-wing men were accused of plotting to attack ANC politicians at the party’s 2012 elective conference in Mangaung.
“The question is, can you prove intent? How does the state prove he really had intent to take up arms and overthrow the government. If a shot was fired – that’s a different story,” said Alexander.
Asked if the lesser charge of sedition would apply in this case, Alexander said though it was possible, it would still have to come with proof of intent. Sedition is defined as overt conduct, such as speech and organisation, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent or resistance to lawful authority.
“You could argue that it may be sedition, but here we are dealing with intent, in all forms of criminal acts there has to be an element of intent. In the form of sedition of treason, maybe, it just doesn’t suffice.”
Chairperson at the board of the Institute for Security Studies, Jakkie Cilliers, said although Malema’s words were dangerous, the ruling party’s decision to lay a charge of high treason was inappropriate.