Experts have questioned whether the Hawks and the National Prosecuting Authority (NPA) were acting on a political agenda against EFF leader Julius Malema by pinning charges against him, using the apartheid-era Riotous Assemblies Act of 1956 for statements he made earlier this year regarding land.
The party leader is set to approach the high court in KwaZulu-Natal to have the Act and the charges levelled against him declared unconstitutional. In June this year, Malema told supporters that whites could not claim ownership of any land because it belonged to blacks.
Executive secretary of the Council for the Advancement of the Constitution of South Africa Lawson Naidoo said the organisation was wary of the motive behind the use of the controversial Act.
“It would seem that the use of this notorious piece of legislation is indicative of the political nature of the charges. There are other laws relating to hate speech and incitement which could have been used so the use of this legislation does call into question whether there is a political agenda at work here.”
Political analyst Mcebisi Ndletyana said that the Hawks’ actions reeked of a political agenda.
“What makes them look suspicious is that earlier on, you had an ANC Youth League leader who said something along the lines of taking up arms to protect the president of the ANC, so why wasn’t there similar energy applied to enforce that law in that context?
“It does not look honest at all, this matter has political malice written all over it.”
He said that, in his view, Malema may be protected by the constitution in terms of free speech.
“The issue for me, primarily, is whether or not he had violated freedom of speech because I think the constitution does allow him to say what he says because, as I understand it, it is part of the constitution of his party.”
NPA spokesperson Luvuyo Mfaku defended the decision to proceed with the charges because, he says, the Act has not been declared unconstitutional and was therefore applicable.
Retired Constitutional Court Judge Johan Kriegler told The Citizen that just because a law was implemented during the apartheid era, this did not necessarily make it unconstitutional.
“The simple facts are the following: the law holds many statutes which in some way or the other reflect the apartheid society and to say that a statute is unconstitutional because it was instituted in the apartheid era would not hold water in court. You would have to look at each provision to that Act and decide whether, in this current dispensation, it is constitutional or not.”
While the Act is known to have been used to deal with anti-apartheid gatherings and activities, Malema is charged in terms of Section 18 (20) (b) of the Act in that he purportedly incited or instructed his followers to commit the crime of trespassing in terms of Section 1 of the Trespass Act, which prohibits the illegal occupation of vacant land.