Every person is innocent until proven guilty, even Omotoso

Nigerian pastor Timothy Omotoso’s lawyer Peter Daubermann was mobbed by protesters outside court on Wednesday.

Nigerian pastor Timothy Omotoso’s lawyer Peter Daubermann was mobbed by protesters outside court on Wednesday.

Published Oct 21, 2018

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The path to justice as victims of crime cry out for it is through a scrupulous respect for, and observation of, the right of every accused person to a fair trial. And ancillary to that is the right to be presumed innocent.

All three conjunctively lead to a stable and ordered society premised on the principle of the rule of law.

I hope that with what follows in this column, my writing will cause everyone reading this to reflect and pull back from the abyss informed by anger and frustration that is leading up to a lynch mob mentality.

With specific reference to the experience of the alleged kidnapper of Miguel Louw when he and his father were attacked this week outside the Durban Magistrates’ Court, unless common sense and patience override the zealots of mob or kangaroo court-type justice, such conduct is to the detriment to us all as a society.

I write as a lawyer of more than 38 years’ experience in the trenches in the war for justice, having had the benefit of the worst of times and now the best of times.

So what is this “right to a fair trial” all about? My duty and obligation as a lawyer representing my client in a criminal trial is a conscious choice I make in my quest to ensure justice is seen and done in a manner that, whatever the outcome, I can lift my head in praise of the bill of rights under our constitution that I’ve fought for. Think about the relief of the family of Ahmed Timol, murdered by apartheid-era security branch members after 43 years.

Linked to the right to a fair trial is a quest for the truth, the whole truth and nothing but the truth. I’m sure everyone reading this is familiar with this principle. But the truth is a two-sided coin, one that you don’t simply flip and leave to chance. You have to be sure; hence, added to the finding of guilt is that it must be beyond reasonable doubt.

This requires each side of that coin to be examined and interrogated free of fear and favour. Often the quest for truth and justice requires unpopular choices to be made.

That truth has to be tested against well-established principles enshrined throughout centuries of jurisprudence. Even our holy scriptures enshrine principles of justice.

Justice is an ever-evolving windmill that philosophers from Plato onwards have been taking a tilt at. That is why we have a judiciary that is impartial and independent under our constitution. We have agreed, through our social contract with the government, to delegate to the judiciary the power to decide whether a person is innocent or guilty.

Becoming a lawyer and thereafter being appointed as a magistrate or judge requires decades of learning and experience. We must understand that.

As a lawyer, I’m obliged to present my client’s version to the best of my ability and to thoroughly put that version to the complainant or victim of crime. Those moral and self-righteous wolves baying for the blood of the accused who hasn’t been convicted don’t care and consider that as justification that I, as a lawyer, am either lying or trying to get off a guilty client.

It sickens me because, as a lawyer, I am sworn to represent my client, to ensure that he or she gets a fair trial and to present evidence and versions as I am instructed by my client. What that advocate is doing, in the case of that pastor in Port Elizabeth, is what he is supposed to do, namely to try to discredit the alleged victim. 

And as unfair as it sounds how he went about it, the victim has done well these three days. She gave a good account of her alleged ordeal and I have no cause to believe that she’s fabricated her evidence.

I have no sympathy for sexual predators or child molesters or criminals generally. But I won’t succumb to those baying for the blood of the accused. I subscribe to the belief that on a finding of guilt beyond a reasonable doubt, the accused must be convicted and suitably punished. 

We have a constitutionally mandated impartial judiciary that was negotiated into the bill of rights as well as the other sections in our Constitution. Let’s leave it to the judge to decide the outcome.

Timothy Omotoso, Lusanda Sulani and Zukiswa Sitho at the Port Elizabeth High Court on Tuesday. Picture: Raahil Sain / ANA

Rape victim Cheryl Zondi. Picture: Raahil Sain / ANA

As with Oscar Pistorius, the outcome, if we are not satisfied, can be taken to the summit of justice - the Constitutional Court. But we may have reservations. Leave the decision to be handed down without fear or favour.

Until then, I must calmly and collectedly wait for the outcome. So should you, my country men and women.

* Saber Ahmed Jazbhay is a consultant and conveyancer with attorneys Jazbhay and Harrichund and an accredited commissioner for the CCMA and Bargaining Councils. He writes in his personal capacity. 

** The views expressed here are not necessarily those of Independent Media.

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