Zuma’s golden silence broken

For more than a year, former president Jacob Zuma successfully managed to evade the hot seat at the Commission
of Inquiry into State Capture.

But the buck stopped with the Constitutional Court on Thursday, when he was ordered to take the stand for questioning.

“Although clumsily put, it is apparent that the respondent and his legal team believe that he has a right to remain silent during the proceedings before the commission.

“However, the right to remain silent that I am aware of is the one guaranteed by…the constitution and under the common law,” Justice Chris Jafta, who wrote the court’s judgment, said.

ALSO READ: ConCourt rules that Zuma does not have the right to remain silent at Zondo inquiry

“But that right is evidently available to arrested and accused persons only. When he appears before the commission,
the respondent’s status is that of a witness. He is not an arrested person. Nor is he an accused. Moreover, a witness in a criminal trial has no right to remain silent.”

What exactly he will have to answer remains to be seen, though.

Political analyst Ralph Mathekga was still doubtful the country would get the right answers.

“We were never going to get the answers we needed,” he said. “Zuma does not believe state capture ever happened.”

But, he said, the ruling was nonetheless an important step.

“It means, Zuma has run out of legal avenues to pursue. So he is going to be there. They’ll be dragging him there by his ears – but he is going to be there.”

Mathekga also pointed to the fact that if the commission found the former president evasive or untruthful, it could make findings to that effect.

Daniel Silke, another political analyst, said Zuma remained in control of how much he divulged.

“Although he may well now have to appear and respond to questions, the question is if he will answer the questions and provide the information.”

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Zuma is scheduled to appear before the commission again next month but his lawyers did not respond to The Citizen’s questions on Thursday about his attendance.

The court ruled while he did not have a blanket right to silence, Zuma did enjoy the privilege against self-incrimination.

So, he will be able to choose not to answer certain questions, but will have to show Deputy Chief Justice Raymond
Zondo, chair of the commission, how they would be self-incriminating.

Last year, Zondo eventually subpoenaed the former president after all the commission’s other efforts to get him back into the witness box after a brief appearance in 2019 came to nought.

On the day his evidence was set to start, Zuma brought an application for Zondo to recuse himself. And he wound up staging a dramatic walkout after his formal application was dismissed.

“He was firmly placed at the centre of those investigations which include an allegation he had surrendered constitutional powers to unelected private individuals.

“If those allegations are true, his conduct would constitute a subversion of this country’s constitutional order,” Jafta said.

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Jafta described Zuma’s conduct in defying the commission’s previous directives as “antithetical to our constitutional order”.

“Disobeying its laws amounts to a direct breach of the rule of law, one of the values underlying the constitution and which forms part of the supreme law. In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect those laws,” he said.

The court ordered Zuma to give evidence before the commission on dates determined by it and declared he did not have a right to silence in the proceedings – which his legal team previously indicated he might try to claim.

It found, however, as a witness, he did enjoy the privilege against self-incrimination.

“In the event of doing so, the witness must raise the question of privilege with the chair and must demonstrate how an answer would breach the privilege.”

– bernadettew@citizen.co,za

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