Let+tragedy+not+obscure+sight+of+justice,+Gordin,+Sindy



=Let tragedy not obscure sight of justice=


 * //Reports that the court is persecuting the rape complainant are inaccurate and damging to the judicial process//**

Sunday Independent, Johannesburg, March 19, 2006

 * By Jeremy Gordin**

Nine court days into the Jacob Zuma rape trial, it would be wise for all of us - writers, broadcasters, commentators, gender activists, and others - to put a sock into it when we feel the overwhelming urge to comment on the matter.

Note that I have written "comment", not "report". And, under the rubric of "others", I must include the Commission on Gender Equality (CGE), the Human Rights Commission (HRC) and the public protector.

For these three bodies agreed this week to meet "in the next few days" to discuss "concerns" relating to the Zuma trial.

There are a number of reasons why we ought to watch out about commenting. But the main one is that by negatively commenting (as opposed to reporting) on the trial, we are rubbishing our judicial process. And not only does our judicial system have enough troubles as it is (transformation issues and skills shortages, to name two), but attacking the system is unfair to the laws we do have in place to protect people's dignity and also to those who run and work in the system.

The Zuma rape trial is being conducted strictly and fairly according to the law by all those responsible for it - Judge Willem van der Merwe, the prosecution and the defence - and to suggest otherwise, which is what most commentaries suggest in one way or another, is not only inaccurate but unjust. It also ultimately misleads us all.

The most prevalent allegation is made by gender activists, but I also heard it made on the radio this week by a doubtless well-qualified legal person from Cape Town. It is that the complainant has been put on trial, rather than the accused, because she was cross-examined on her sexual history and, second, that her evidence about her sexual history ought to have been heard in camera.

Surely the legal person would know that, in terms of section 227 of the Criminal Procedure Act, a person who has laid a rape charge may not be questioned on his/her sexual history unless special permission is granted by a judge. Precisely for this reason, an in camera hearing was held at which Kemp made that application.

No one knows what occurred at that hearing, but we know two things and may safely assume a third.

What we know, first, is that the application was permitted by the judge - with the proviso that if any irrelevant or unnecessary testimony evidence was raised about the woman's sexual history, the judge reserved the right NOT to take it into account. Second, we know that Kemp successfully persuaded the judge that the complainant's sexual history was relevant to the case.

And what we may assume is that the prosecution also accepted the "justice" of Kemp's argument. If it had not, the judge would not have agreed to it so relatively quickly and the prosecution would have recorded its strenuous objection.

In addition, Kemp and the judge also went out of their way, in deference to the complainant, to protect the identity of people connected with her, by allowing her to write their names on a piece of paper, which was passed to the judge, defence and prosecution.

Regarding hearing the woman's subsequent evidence about, and cross-examination of, her sexual history in camera: it is a trite truism, but a truism nevertheless, that for justice to be done properly, it must be seen to be done.

If the complainant's sexual history had been heard in camera, then why not hold Zuma's testimony in camera as well? And can you imagine the hue and cry that would erupt in this country if the rape trial of the former deputy president were heard in camera? The phrase "Massive cover-up in court", and stronger ones, would have been screamed from the roof tops.

In short, the court and everyone connected with it actually went out of their way to protect the complainant and the public from a perception that the legal system "is helping to perpetuate the idea that it's okay to rape", as one member of the CGE, and other gender activists, have suggested during the past two weeks.

Another reason why people who are not actually reporting on the trial should be wary about commenting on it is that they sometimes mis-report.

A business magazine, one read by opinion-makers, wrote this week in its main editorial that: "Zuma's lawyers have sought to paint the [complainant in the trial] as mentally unstable, a liar and a lesbian to boot".

This is untrue. Leaving aside that the defence would gain no conceivable advantage for Zuma by "painting" the complainant as a lesbian (on the contrary), what actually happened was that she herself stated openly to Kemp J Kemp, SC, Zuma's counsel, that her sexual preference was for women.

On Friday, a gender activist wrote in a weekly newspaper:

"Under the protection of the state, [the complainant's] 'police minder' tried to 'persuade' her to drop the charge."

This is untrue, not to mention defamatory of the minder and "the state". What the complainant alleged in court about her police minder was that she, the minder, told the complainant to lie [the complainant's word] to reporters from two newspapers about whether she had made a rape complaint against Zuma.

The same gender activist also wrote this week: "A calm, quietly confident woman took the stand on Monday and was torn to shreds by the end of the week. She was 'systematically grilled', her words stolen from her private manuscript."

Who said she was torn to shreds? What happened was that she had her version of events questioned on the basis of her history, which, it became clear, was related to rape and alleged rape, and some of which she had written down for a planned book. And what if it should turn out that her version of what happened with Zuma is not true? Are his counsel not entitled, in his defence against a very serious charge, to test her version?

The problem here is that because the complainant is an alleged rape victim, because her sexual history is a heart-breaking and tragic one, people therefore assume that she is right, Zuma is guilty, and that "the court" has somehow taken his side.

Zuma has not even taken the witness stand yet. Do we really have to remind each other in this country that a person is presumed innocent until proven guilty and that everyone is entitled to a free and fair trial?


 * From: http://www.sundayindependent.co.za/index.php?fSectionId=1042&fArticleId=3165527**

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