Durban - A day before the deadline for all parties involved in the Constitutional Court rescission application by jailed former President Jacob Zuma to file their supplementary papers, experts have offered their insight on what the apex court is trying to achieve.
At least one expert said the Constitutional Court could be trying to factor in all local and international aspects of detaining or jailing a person before handing down its ruling.
Late last week the court wrote to Zuma’s lawyers, Democracy in Action, the Zondo Commission, the Helen Suzman Foundation and the Council for the Advancement of the South African Constitution to make the written submission by Friday.
Each party should make submissions not exceeding 20 pages and the submission should stick to two aspects: "whether the court is obligated to consider the United Nations' International Covenant on Civil and Political Rights (covenant) when construing section 12(1)(b) and 35(3) of the Constitution“.
And "If it should, what implications do articles 9 and 14(5) of the covenant together with decisions of the Human Rights Committee have on Zuma’s detention.
The directive prompted leaders of the Free Jacob Zuma campaign like Carl Niehaus to say that the court may have realised that the “illegal detention of Zuma” without a trial “has far-reaching consequences”.
Durban-based attorney Mpumelelo Zikalala, who has been following and offering media commentary on Zuma’s legal woes for some time now, said the directive could be aimed at ensuring that at local level, the Bill of Rights was not contravened, but said it was not clear to tell the final outcome.
“Using its own rules, the Constitutional Court has the ability to issue directives on any matter before it, just like they did earlier, when it called upon the former president (Zuma) as to what type of punishment or mitigation the court should consider before pronouncing the matter that landed him in jail… So I am not alarmed by what they are asking for. So what the court would do is say we want to make sure that you are looking at things from a proper perspective. We want to make sure that we did not miss certain aspects that need our attention, so let us look into international law, but we can’t do that on our own… we want to consider all the facts that have been presented to us,” Zikalala said.
Furthermore, Zikalala said the focus of the court would likely be on the South African Bill of Rights, which prohibits unfair or illegal detention of people.
“This covers the right not to be punished without a trial, and the definition of a fair trial as per section 35 of the constitution. We are looking at it, vis-à-vis, the international part of guidelines that have been offered to us by the international bodies which we are treaties to… So if that is the case then we will have to look at how close we are in terms of the practices...That is the task that has been given to parties,” he added, warning that Zuma’s team would likely stick to its argument that his jailing was in contravention of local and international law.
Professor Pierre de Vos of the Department of Public Law at the University of Cape Town said in this case it was not easy to predict what the intention of the court is and the final outcome.
“I have no idea what (the) ConCourt is expecting. (It) will probably only be clear once we see the judgment,” he said.
Meanwhile, Zuma is still under the care of the military health services, which took him out of his Estcourt Correction Centre cell on Friday last week and moved him to Gauteng, where he is being treated.
In a letter to Judge Piet Koen of the Pietermaritzburg High Court, Brigadier-General Dr Mcebisi Zukile Mdutywa, from the military health services, said the extent of the injuries to the former president posed a risk to his life. He added that they would need six months to ensure he completely heals.
Political Bureau