There's no way out for Zuma now

If former President Jacob Zuma wants to avoid answering questions from the State Capture Commission, last week’s judgment from the Constitutional Court has left him fast running out of options, according to legal writer Franny Rabkin in the Sunday Times. The unanimous judgment written by Justice Chris Jafta ordered him to ‘obey all summons and directives lawfully issued’. Not only must he appear before the commission, he MUST answer questions. The court declared Zuma does not have the right to remain silent. He may, however, ‘exercise the privilege against self-incrimination and refuse to answer questions that may incriminate him’. But that doesn’t offer Zuma an escape route, notes Rabkin. She points out the court clarified that the President may not – as his close associate former SAA chair Dudu Miyeni did – trot out in perfunctory fashion a refusal to answer ‘in case I incriminate myself’. The judgment said witnesses must ‘demonstrate’ how an answer would breach the privilege. ‘Privilege against self-incrimination is not there for the taking by witnesses’. They must also specify which crime they may be implicating themselves in. The judgment also removed from the Zuma’s potential arsenal some legal arguments that he might have made to the commission for why any future summons or directive is unlawful, which, even if they would ultimately have failed, could still have delayed things. Rabkin notes, too, that Zuma had the opportunity to contradict the commission’s version but chose not to participate in the Constitutional Court case. Jafta said ‘the facts as set out in the commission’s papers are not disputed and as a result they will be taken as correct’. Similarly, it is not open to Zuma to argue before the commission that his pending review of Zondo’s refusal to recuse himself suspends any obligation to appear and testify. That issue was raised in the Constitutional Court, and he chose not to oppose the case, notes Rabkin.

So what options are left for the former President? Rabkin's Sunday Times analysis points out that if he chooses to ignore the summons, by not turning up or turning up and refusing to answer, the commission will have two options: it may once again lay a criminal complaint against Zuma – this time for breach of the summons and also for breach of a court order. This would involve a prosecution by the National Prosecuting Authority (cue years of intervening litigation if the other prosecution Zuma faces is anything to go by, observes Rabkin). She notes the Constitutional Court’s order has given the commission a further option, albeit a drastic one: if the commission has the stomach for such a fight, or the time, it may go straight back to court and ask for it to hold Zuma in contempt. It may even ask a court to order that he be put in prison for a certain period, which period can immediately be cut short if he appears and testifies at the commission.