Comment & analysis
The Zuma trial, gender and the judiciary continued…(2)
Kristin Palitza
2006-05-18, Issue 255
http://pambazuka.org/en/category/comment/34374
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In the aftermath of the acquittal of former South African deputy president Jacob Zuma on charges of rape, it seems that everyone has had an opinion on the judgment – and an opinion on everyone else’s opinion. Last week, Pambazuka News carried a series of articles on the trial and this week reactions have continued to be sent in. Here, Kristin Palitza voices her views.
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.
* Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org
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