Opposition politicians and analysts are showing increasing concern at what they perceive to be a destructive attack on the judiciary by the African National Congress (ANC), which they fear will undermine the justice system and erode democracy. The attack revolves around the impending prosecution of the recently elected ANC president, Jacob Zuma, who elbowed President Thabo Mbeki out of the job and who, were it not for that impending court action, would be the prime contender for the country’s presidency when Mbeki’s second term ends next year. The destructive theme of the attack is twofold: that the prosecution of Zuma is a politically motivated conspiracy, with the finger pointing in the direction of Mbeki as the instigator, and that Zuma will not get a fair trial. The latter sentiment was expressed in blunt terms by Congress of South African Trade Unions (Cosatu) deputy secretary- general and spokesman Patrick Craven, who said that no matter who presided over the court, Zuma would not get a fair trial.

That outrageous comment prompted retired chief justice Arthur Chaskalson and senior advocate George Bizos to take the most unusual step of issuing a strongly worded protest pointing out the danger such irresponsible statements held for the judiciary in the eyes of the public.

Subsequently, the judiciary’s attackers, the ANC Youth League, the Young Communist League (YCL) and Cosatu backed down and professed their support for the judiciary.

But shortly afterwards, an attack on Deputy Chief Justice Dikgang Moseneke which appeared to have been settled broke out afresh. The first attack arose after Moseneke, at his 60th birthday party, made what the three organisations interpreted as disparaging remarks about the ANC.

After Moseneke and Chief Justice Pius Langa held discussions with Cosatu general secretary Zwelinzima Vavi that matter was settled, only to be raised again at the YCL lekgotla at which the league cast doubt on Moseneke’s integrity and called on him to recuse himself from the Constitutional Court hearing of Zuma’s appeal against a Supreme Court of Appeal finding against him .

There appears to be two objectives for the attacks on the judiciary.

The longer-term issue is to try to stop the prosecution of Zuma by casting doubt on the legitimacy of the case by the Scorpions (the directorate of special operations) against him and to link the judiciary with this “illegitimacy”.

The second attack on Moseneke appears to be directed to persuade the Constitutional Court to find for Zuma in his appeal or to cast enormous suspicion about the result if it goes against Zuma.

While the attack on the judiciary is extremely important and must be resisted, another player in the justice system — the police force — has adopted extrajudicial practices, which are equally harmful to the system unless checked, and there appears to be no effort by the authorities or the safety and security department to do so. Together, they could have very dangerous consequences for the justice system.

The high-profile example of police extra-judicial conduct was the arrest of Scorpions senior prosecutor Gerrie Nel. The fact that the police acted against Nel without sufficient evidence — the case was thrown out before the hearing began — is one aspect that is alarming because it indicates that the police have begun to institute criminal proceedings against people perceived to be their enemies, not on the basis of hard evidence but on the whiff of suspicion, no matter how poorly grounded.

The other, perhaps more serious, aspect of the action against Nel was the manner in which the arrest was carried out. Though the police had obtained a warrant in November, they chose to execute it in January and at 9pm, so ensuring that Nel would be punished by serving the best part of a day in prison.

That part-day’s imprisonment had not been imposed by a court but by the police by manipulating the manner in which the warrant was served.

This was extrajudicial punishment decided upon by the police and carried out by them. Leaving aside the shallowness of the allegations against Nel and the fact that the police need merely have warned him verbally to appear in court to answer the charges, if they felt there was a need to serve the warrant, the way that should have been done in a judicial fashion without prejudice to the accused was for it to be served during business hours. That would have enabled Nel to obtain bail and not suffer imprisonment.

Other aspects which support the claim that the police acted extrajudicially is the manner in which the warrant was obtained, which is alleged to have been outside the rules, the fact that stipulated procedures related to police action against a member of the Scorpions were not followed, and the excessive use of force. Having a posse of 20 armed police present when serving the warrant and then handcuffing him in the presence of his wife and children also falls within the ambit of extrajudicial punishment.

This kind of police conduct is beginning to happen with greater frequency. In the past few weeks, a journalist was arrested by being bundled into a police van and jailed for some hours by the police on spurious grounds. The case was thrown out by the prosecutor, because there was no case to answer, before it came before the magistrate.

Another reporter was arrested in this period on what are regarded as spurious grounds and his case is pending before court. These cases appear to have been motivated by police objecting to the reporters covering incidents involving the service.

Last year, a Sapa reporter covering an incident was arrested and bundled into a police van, only to be freed when the case came before court.

There are numerous other extrajudicial actions by the police in the past year — such as an attempt to bar reporters from covering a trial of police officers on robbery charges and removing images of Mbeki and Deputy President Phumzile Mlambo-Ngcuka from photographers’ cameras.

None of these acts were ordered by the courts. Neither has there been any public, or, for that matter, private, censure of the police concerned by their superiors.

These cases suggest that police officers are adopting their own view about offences and using their powers improperly to impose their own “sentences”.

A classic example of the excessive and murderous use of extrajudicial processes was the conduct of the police in Argentina against antigovernment activists and, of course, closer to home, the conduct of the apartheid police against anti-apartheid activists.

The lapse into serious murderous extra-judicial conduct generally starts at a much lower level, but then gravitates rapidly up the scale of monstrous behaviour. As with the apartheid police, is the new police service heading in the same direction?

n Louw is editor and publisher of the weekly current affairs newsletter, Southern Africa Report, and the Africa representative of the World Press Freedom Committee.

With acknowledgements to Raymond Louw and Business Day.