The Zuma rape trial was going to raise many questions and bring divisions. I'm actually responding to the four women respondents who expressed their strong opinions in Pambazuka News 254 and starting with the featured interview with Delphine Serumaga.

Is it coincidence that they are all women? I'm not surprised by their diatribe, needless to say that I'm a man, but that does not really fashion my views on this one. There are parts of what they say I agree with and some (most in fact) that I don't and think that they are emotional, misdirected and confuse issues deliberately for the cause of fighting women's rights at the expense of reality and common sense. We all know that our society is "patriarchal", but we're trying hard to change that.

The Judge takes huge flak, unjustly as he was only doing his job, but there is recognition that he was "fair" and his judgment "correct". The alleged "gap in his understanding" is imaginary…the judge was aware of each and every piece of evidence led before him! People must realise that cases are won because there is strong and unassailable evidence, but rape is always difficult as it is the word of only two people against each other. I don't agree with the statement that the judgment was a "setback for women's rights" in general.

I agree that "Khwezi's" dignity suffered and will be difficult to reclaim, but nevertheless the legal system has done its best to "protect" her under the circumstances. Her name or picture may still not be published without consent, she is kept under extended witness protection even after the trial, and she is starting a new life away from SA at the state's expense.

It would be sad if indeed the judgment means that women who are abused are intimidated to approach police and courts, but the flip side also is that in such cases people may not abuse the system by claiming non-existent rapes, or fulfill other agendas via bogus rape charges.

Interesting that a Sunday paper published views from the public about the Zuma judgment and his aspirations for presidency. More important is that the majority (49%) "agreed with verdict, 40% didn't" and again a majority 51% "accepted Zuma's apology for his behaviour", only "42% didn't". These perceptions are likely to change over time. It is two years before the issue of the presidency really comes up for any serious contention. Besides, the ANC is capable of dealing with this issue within their structures, without any individual influence.

Thandanani Mafuleka

The past few weeks have been characterised by heated debate and unfettered anticipation about the verdict of the Zuma rape trial. The matter has polarised the nation not only across gender lines but also across class, ethnic and political lines. Having been in downtown Johannesburg when the verdict was announced, I imagined that the anticipated carnage that would have occurred had the verdict been different might have been physically inescapable. As it was the vuvuzelas, cheers and hooters indicated that to some citizens’ estimations, justice has been served.

In addition to the woefully pedestrian prosecution, “Kwezi’s” case was hampered by several social and political complexities. I hold the theoretical view that race, culture, gender, class, and ethnicity are not “external variables” but rather inherent features in an ongoing process of constructing how we understand and participate in the larger social, cultural, and political discourse. This was best encapsulated by two divergent views expressed in the wake of the trial –one by a lawyer colleague and the other by a teller at my local Pick’n Pay. The former stated that he would certainly be attending the ANC congress next year in order to keep Zuma out of the presidency, adding that he attributes blame for this debacle to Mbeki’s aloof and unapproachable leadership style. The young sister at the till jubilantly told me that she would again vote ANC if Zuma were President adding that she as a Zulu woman is tired of Xhosas. Upon my rejoinder that tribalism is not healthy for any nation she heartily responded - “They started it”.
The clear ethnic divide that this case has opened is like a fine dye in which clothes have been soaked. It will take several washes to examine the extent to which the colour has been set and several more to remove it should it be found not to our liking. This case exacerbates and evokes every moment of tension and hatred experienced during the scourge of “black on black violence” and the blood shed in KZN before the elections of 1994. It is moments such as this that should remind us that the matchstick lit in Rwanda in 1994 could be ignited in any country whether through Western interference or the interests of Multi National Companies. Rwanda, the Darfur region and Angola for example are chilling reminders that no-one may be left to recall “who started it”.

The notion of justice is fragile and often fluid. This case illustrates that the legal process has run its course and that political interests are willing to subvert this process for other ends. Whether this is a slap for President Mbeki, an attempt to divert attention from the upcoming corruption trial, or an endeavour to install a working class president to supposedly ensure “workers right’ even though Jacob Zuma has never stood by workers during his cabinet tenure, the loser here is the credibility of any woman who walks into any police station or courtroom to lay a charge of rape.

The law, police , lawyers and judges in this or any matter are not amorphous beings without bias but people with opinions on various types of sexual behaviour and orientation (witness Judge der Merwe’s chastisement of Zuma), perceptions on correct physical and emotional responses to rape, understanding of culture, on religion, on politics and even dress-code. In all this we could not forget that no matter how close Zuma may have been to Kwezi’s parents, Kwezi herself is not of notable ‘political royalty’ , is not a BEE magnate and has no access to the sort of political and media spin doctoring at Zuma’s disposal.

As the TV media dismissively described the hasty exit of gender activists from the courtroom, many in tears, the ultimate victims of the process were left decimated - the rape of authentic moral regeneration, the rape of any woman’s right to make self determined choices about her social and private life, the rape of male accountability, and the rape of trust. The breach includes trust in positive cultural practises, trust in elders, trust in men who believe consent is implied by accepting a dinner date, trust in other women who cried “burn the bitch”, trust in the legal system and trust even in our own ability to relate to each other as one dignified nation rather than one fragmented by skewed understanding of gender, ethnicity, class and political orientation. When our essence has been torched and all that remains are the carcasses of the nation we could have been and the people we should have been, who indeed will be left to recall what greatness and humanity truly are.

* Liepollo Lebohang Pheko is a Senior Policy Analyst at GENTA

Liepollo Lebohang Pheko , Genta

South Africa’s former deputy president Jacob Zuma has been found not guilty. This was judge Willem van der Merwe’s verdict based on the evidence presented to him. But the truth, and nothing but the truth, will only be known by two people – the complainant and the accused.

What will remain – as a legacy to all South Africans – are the implications of the trial with regards to women’s rights and violence against women.

The judge concluded that consensual sex took place between Zuma and the 31-year-old HIV-positive AIDS activist dubbed Kwezi. He gathered this by firstly deciding that she was not a lesbian, as she claimed herself, but bisexual with lesbian tendencies. In other words, it was possible that she would willingly engage in sex with a man.

What was also used against Kwezi was her statement that although HIV-positive persons should practice safe sex it was ultimately the decision of each individual to do so. According to van der Merwe, this assertion showed that Kwezi might have used her discretion when having sexual intercourse with Zuma, and he therefore turned down the argument that HIV-positive Kwezi would not have agreed to unprotected sex. But isn’t there an alternative interpretation? Kwezi’s statement could very well be read as a personal commitment to safe sex, while refusing to deny the right of other HIV-positive persons to make their own decisions.

Without forensic evidence available to him, van der Merwe based his verdict on who – complainant or accused – seemed to be the more credible person. He found that in this ‘unique case with unique features’ as he liked to call it, it was ‘relevant’ to take the complainant’s sexual history into account. And after he publicly paraded Kwezi’s sexual history in great detail, he decided that it was Jacob Zuma’s version of the incident that was the most reliable.

As all South Africans believe by now, Kwezi is a serial rape accuser. Although it is true that her past does not particularly work in her favour, we cannot conclude with certainty that she lied in this case. Apart from that, who is to say that all the men she allegedly accused of rape in the past tell the truth when not even half of the ‘cases’ have actually come to court and some are purely based on hearsay?

For unknown reasons, the judge did not apply the common legal rule that bad character evidence does not presume bad acts. Instead, he ruled that Kwezi’s history of what he decided were false rape accusations eroded her credibility in her case against Zuma. He concluded that Kwezi’s credibility was ‘wanting’ because ‘at a young age, she already made allegations of rape when no rape took place’.

Van der Merwe also chose to ignore the fact that many of the alleged rapes took place when Kwezi was under age, and thus any sexual act performed on her as a minor would according to South African law equal molestation and/or statutory rape. He further disregarded the fact that, because the majority of the rape allegations never came to trial, his inquiries about events that took place more than a decade ago became ‘he said, she said’ reports without providing factual evidence.

His argumentation then raised the question of why Kwezi would have chosen to go through the trauma of the trial. And here, again, van der Merwe opted to agree with the statement of male testifiers (who do not have psychological qualifications) that Kwezi was ‘a sick person who needs help’. The judge decided it was likely that – based on her sexual history – Kwezi perceived any sexual behaviour as threatening, and further concluded that Kwezi was pretending to be a meek, submissive person, while she was, in fact ‘a strong person who knows what she wants’. It was therefore unlikely that Kwezi would have not screamed when raped, especially if the accused surprised her when she was already asleep.

What van der Merwe fails to consider or understand is how easily charismatic and influential men can abuse their power, especially when dealing with easily manipulated women with a traumatic past. Yet, the judge concluded that only a ‘foolish, over-confident rapist’ would return to the crime scene to talk to his victim and thereby pre-supposed Zuma’s psychological profile and abilities.

Why did he not find it necessary to have Zuma’s psyche studied to professionally establish what he is or isn’t capable of, rather than making his own assumptions, especially since Zuma is well known to all South Africans as an enigmatic, confident and self-assured public figure?

Van der Merwe clearly did not understand or did not want to understand that it is hard to predict how a woman will react when being violated. He argued that the following points indicated consensual sex: Kwezi didn’t scream, said no twice to the massage but not to the penetration, did not call the police or lock her door, and did not leave Zuma’s house immediately after the incident. Yet, there is simply no way of drawing unanimous conclusions about how people react in certain situation. And why did van der Merwe think it was appropriate to generalise women’s behaviour in this instance, after insisting on the ‘uniqueness’ of the case when deciding upon the relevance of Kwezi’s sexual history?

It is true that one possible interpretation of Kwezi’s actions could be that she was comfortable with their sexual interaction. But it is equally probable that she did not leap into action after the intercourse because she was heavily traumatised, confused, intimidated and extremely frightened of the prospect of taking on one of the most powerful men in the country – not to mention a man whom Kwezi openly supported and idolised.

Curious was also how effortlessly the judge brushed aside the analysis of Kwezi by well-respected State-appointed Dr. Merle Friedman while deciding that the findings of Dr. Louise Olivier, paid by Zuma’s defence team, were the more trustworthy ones. Even if Olivier’s statement that only 10% of women freeze when raped is correct – who is to decide that Kwezi does not belong to this minority?

It is true that Kwezi undermined her own credibility by refusing to be examined by Olivier, but then again, who could blame her? Especially since it is public knowledge that Zuma paid an estimated R1.2 million to R1.8 million for his defence, including Olivier’s fee. Why did the judiciary not make an effort to provide an independent psychologist to analyse the psyche of the complainant?

We must also note that while van der Merwe did not consider Kwezi’s mother a reliable witness because of her emotional bias towards her daughter, he had no qualms taking statements made by Zuma’s daughter Duduzile as the truth. It did not occur to him that Duduzile might be equally biased – towards her dad.

Another important reason for the verdict was that the judge did not accept Kwezi’s claim of having a father-daughter-relationship with Zuma – because a) they had been out of touch for more than ten years before they resumed contact, and b) Duduzile denied that Kwezi was a good family friend. Here, Kwezi’s statement stands directly against Duduzile’s, and the judge decided to believe the latter. Why? Again, because Kwezi was, in his view, not credible because of her sexual history.

Van der Merwe even went further when he concluded that – now that he established that there was no paternal relationship – Kwezi’s cell phone messages to Zuma signed off with ‘love, hugs and kisses’ must have been meant as sexual invitations. The judge described Kwezi as ‘inappropriately dressed’ (again, largely based on a comment by Duduzile) and observed that Kwezi did not object to Zuma coming to her room despite previous sexually charged conversations. In other words, it came down, once again, to the old justification of the woman having acted proactively and in a way to invite and encourage a sexual encounter.

It is a major setback to women’s rights that a woman’s sexual history, clothing and ‘inviting behaviour’ has once again been used to her disadvantage, while the man’s sexual history has not even been discussed.

* Kristin Palitza is the editor of Agenda, a journal on women’s rights and gender.

Kristin Palitza, Agenda

ISSN 1753-6839  Fahamu