South Africa

ANALYSIS

The politicians who are ‘innocent until proven guilty’ might not enjoy all that jazz for too long

Rapper Sjava has been removed from the lineup at the Cape Town International Jazz Festival after he was accused by a former partner of abusing her. (Photo: Veli Nhlapo / Sowetan / Gallo Images / Getty Images)

The phrase ‘innocent until proven guilty’ is overused in the SA political context. But it usually works, and people have been able to achieve high political office despite being charged with a crime. A recent decision by the Cape Town International Jazz Festival indicates that this is becoming less acceptable.

In South African politics a phrase that is bandied about when people – and in particular, politicians – are accused of wrongdoing or a crime is that they are “innocent until proven guilty”, and should not lose their job or be removed from their position until found guilty.

For those who say this, the starting point is, of course, the law. SA law, as in most jurisdictions, does state that someone is innocent until proven guilty, and cannot lose any of their rights until the final court of appeal has ruled that they are indeed guilty of an offence. (There are very few jurisdictions where this is not the case – Equatorial Guinea is reportedly one of them). It is for this reason that most people accused of crimes – bar the most heinous – are granted bail almost automatically.

However, there is another way to judge this issue. 

If a bank teller is accused of, or charged with, theft, their employer would almost certainly immediately suspend them from office. If a school secretary is accused of stealing cash from the tuckshop, it is likely that that person would be removed from dealing with money until the situation had been cleared up. Parents at the school and customers at the bank would demand such action because they do not trust that person not to steal more money.

But things work differently in SA politics.

Several people have, through their political power and deep pockets, remained in important positions of trust even though they face strong claims against them. The prime example is former president Jacob Zuma. Even though he was about to face charges of corruption, and despite the public evidence against him, he was elected leader of the ANC in 2007. It was at this time that the phrase “innocent until proven guilty” reached a crescendo. When it was clear Zuma would become president he used his political power to influence the NPA to drop the charges against him.

Since then, other politicians have used the same phrase. 

Just this week, Bongani Bongo, the chair of Parliament’s Portfolio Committee on Home Affairs used the phrase on SAfm when he said he had a right to remain in that position, despite being charged with corruption. 

(He’s accused of trying to bribe Parliament’s former legal adviser during its inquiry into Eskom.)

This suggests that despite the claims of a “New Dawn” not much has changed. It also suggests that if other senior ANC leaders are charged, they too will remain in office. This is despite the fact that the decision to charge someone is only taken if the NPA believes it has a good chance of getting a conviction. In Parliament on Wednesday the NPA reported that it has conviction rates of 87% in high courts, 74% in magistrates’ courts and 88% in regional courts. 

However, there’s a shift in our society that may make the claim of Bongo and others in a similar situation – innocent until proven guilty – untenable.

This week, the Cape Town International Jazz Festival announced it had removed the rapper known as Sjava from its lineup. He has been accused by a former partner of abusing her, and she has laid a charge of rape against him. The festival’s organisers said Sjava had been removed because of the “seriousness of the allegations against him”.

The organisers may well have made this decision for two reasons. The first is a moral reason – they believe that in a country where so many women are raped, attacked and killed by men, to have someone accused of such a crime on their stage is wrong. 

The second reason could be a commercial one. They may feel that sponsors and patrons will avoid the festival to make a point about having a man accused of rape on their platform.

This is despite the fact that the NPA has not yet decided whether to pursue a case. 

There have been similar occurrences in the past.

In 2019, President Cyril Ramaphosa pulled out of an event hosted by Power-FM chairman Given Mkhari because of claims that Mkhari had assaulted his wife. In that case, both he and his wife accused each other of assault. A legal resolution to this issue seems unlikely.

The question is whether this trend will continue, whether people, be they voters, citizens, or jazz patrons, decide that a claim against someone is enough to boycott their product, ‘deplatform’ them or to vote against them.

There has been just one case in SA in which a politician stepped down from high national office after being accused of a crime. Mduduzi Manana was deputy minister of higher education when he was caught on video hitting a woman outside a nightclub. Manana resigned in a unique video “address to the nation”. Several months later he was accused of assaulting a domestic worker, a claim he denies.

The high levels of gender violence in SA may mean that these cases are treated differently.

But it may not be long before the precedents that have been set in these cases are extended to the political realm more generally. If Bongo is found guilty the ANC will be vulnerable to the claim that it allowed him to remain in his position when it should not have. The ruling party does not have the same political power, or levels of support that it did in 2003, when Tony Yengeni was carried to prison on the shoulders of ANC leaders. Decisions that are taken in cases like Bongo’s could well carry weight with voters.

Our society is changing rapidly. The jazz festival may not have taken this decision 20 years ago, the person accusing Sjava of assault may not have gone public 20 years ago. 

The ANC, and those who use the phrase “innocent until proven guilty” may find the phrase no longer carries the weight it once did. DM

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