International detention law does not impact Zuma case – Helen Suzman Foundation

Former president Jacob Zuma “repeatedly, expressly, unequivocally, and with full knowledge of his rights, refused to oppose the commission’s application or place any facts or legal submissions before the court”.

So said the Helen Suzman Foundation (HSF) in written representations it filed in the Constitutional Court this week, on international detention law and the impact thereof on Zuma’s recent contempt case.

The court is currently mulling an application from Zuma to rescind its judgment finding him guilty and sentencing him to 15 months behind bars and earlier this month called for all the parties involved to make submissions on the UN’s International Covenant on Civil and Political Rights (ICCPR).

More particularly, the court asked about article 9, which deals with accused persons’ rights, and article 14(5), which reads: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.

Zuma’s lawyers have argued the court is bound by the provisions of the covenant and that the call for submissions itself indicated “the obligatory duty to consider the ICCPR was not carried out” the first time around and this alone warranted a rescission.

But according to the Commission of Inquiry into State Capture, which brought the contempt case against Zuma after he defied a Constitutional Court order to appear before it, the covenant doesn’t directly bind South Africa on a domestic level.

The HSF argued Zuma was in any case afforded “every opportunity” to oppose the commission’s application.

The foundation’s counsel, led by Max Du Plessis, said: “He could have opposed the granting of direct access, but didn’t. He could have opposed the finding of contempt, but didn’t. He could have opposed the sanction of imprisonment, but didn’t.”

They argued Section 39(1) (b) of the Constitution only required the court to consider international law “as part of an interpretative exercise”.

“International law is not a jurisprudential trump or a constitutional override,” they said.

The Council for the Advancement of the SA Constitution made a similar submission, saying: “Zuma acted to his prejudice in that he rejected opportunities to make representations to this court.”