No one is above the law, Constitutional Court tells Zuma

Jacob Zuma has been ordered to comply with all summonses issued to him by the Zondo commission. The former president also does not have the right to remain silent during his appearances before the commission, the Constitutional Court ruled.

On Thursday the apex gave its ruling in the showdown between Zuma and the commission of inquiry into state capture, which is chaired by Deputy Chief Justice Raymond Zondo. After a year and a half of dodging Zondo, the Constitutional Court’s judgment means the commission’s star witness will be compelled to answer the allegations against him.

Zuma — who has been implicated by more than 30 witnesses in allegations of state capture — walked out of the commission last November despite appearing there under a summons. This was after his bid to have Zondo recuse himself failed.

The commission issued a fresh summons to have Zuma appear before it this month. It turned to the Constitutional Court to enforce the summons and declare Zuma’s behaviour in November unlawful and in breach of the Commissions Act.

Zuma did not oppose the commission’s application.

The Constitutional Court granted the commission direct access to it, allowing the commission to bypass the lower courts. The commission’s direct approach was based on the urgency of its application; the commission is due to complete its work by 31 March.

In its judgment, handed down by Justice Chris Jafta, the court noted that the commission seemingly gave favourable treatment to the former president by not summonsing him in the first place. “Quite clearly the commission is to blame for the situation it found itself in,” the judgment reads, noting the commission’s “blunders” with regards to issuing its summons.

But the court concluded that refusing direct access to it would prejudice public interest.
“The former president is firmly placed at the centre of investigations … The allegations investigated are so serious that if established a huge threat to this country’s fledgling democracy would have occurred,” the court found. “It is in the interest of all South Africans, the former president included, that these allegations be put to rest once and for all.”

The court said it is unacceptable that Zuma, who appointed the commission to probe state capture allegations, has frustrated its investigation.

“The former president’s conduct is a direct breach of the rule of law … In our system, no one is above the law,” the judgment reads. “Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in operation, laws must be obeyed.”

The court also concluded that no witness who appears before the commission has the right to remain silent. This right is available to arrested and accused persons and not to witnesses, the court found.

Witnesses can invoke the privilege not to answer questions that incriminate them, but they must show how the question incriminates them. “This privilege is not there for the taking by witnesses. There must be sufficient grounds that answering a specific question, and the witness will incriminate himself or herself.”

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