The period ahead will tell us whether equality before the law will remain a key principle in our democracy ­ and whether public cynicism about politicians’ motives will grow.

Yesterday’s Supreme Court of Appeal ruling overturning Judge Chris Nicholson’s judgment means that the leader of the ruling party again faces corruption charges. But a cursory look at the political winds suggests that the African National Congress (ANC) and Zuma have no intention of letting the matter rest there: strenuous attempts to bargain a deal to make his trial go away are either in motion or will begin soon. The ANC clearly believes that a legal outcome that will protect Zuma from prosecution is now possible ­ its leaders now talk about a legal remedy to his problem, not the political solution they urged last year.

There are legal and constitutional measures that could shield Zuma from the courts ­ they include persuading prosecutors to drop the charges and appointing a national director of public prosecutions who would decide not to prosecute him. These would “solve the problem” without forcing the ANC to resort to an amnesty or a law exempting a sitting president from prosecution. But the issue is not whether the ruling party’s response is legal and constitutional, but whether it is seen to be fair ­ whether it upholds the principle that there is one law for all of us, whether we are president of the ANC or a shack dweller. It is a test that Zuma and the ANC will face not in the courts, but in the opinions of their fellow citizens.

Zuma is entitled, like any other citizen, to try to persuade prosecutors not to charge him. But he is not entitled to free passes or special favours because he happens to be our likely next president. If he gets them, the cost to him and the ANC will be a sharp increase in an already pervasive attitude among citizens, including grassroots ANC voters, that politicians care only about themselves, not the people who elect them.

So the media, citizens’ organisation ­ and all of us, in fact ­ must look very carefully at the inevitable attempt to protect Zuma from a trial. If a “solution” is agreed on, we must ask whether it would have been possible if Zuma was unemployed and living in a shack. If it would not, we are not equal before the law and the many grassroots citizens who complain that politicians look out only for themselves will distrust the government even more than now.

This would damage the ANC’s ability to govern effectively: governments operate best when citizens trust them and so work with them. But will it harm its election prospects?

Reliable tests of how citizens feel about Zuma’s legal problems are hard to come by. But it does seem likely that many ANC voters do not share the view that Zuma is a victim of a conspiracy and would be uncomfortable about having to vote for a presidential candidate who was facing charges. Given their misgivings about politicians, far more would be unhappy if he benefited from a deal that seemed to give him special privileges. It is not the “masses” who want to protect Zuma, but his political colleagues. Opposition parties ­ the Congress of the People in particular ­ will thus miss no opportunity to mention the legal cloud over his head. But in a country in which political loyalties are very strong, it is one thing to harbour misgivings about the ANC leader, another to vote against a party many regard as their political home. So, if Zuma is perceived to have benefited from a special deal, the ANC may lose credibility but not many votes.

And what of Thabo Mbeki? Some may see as vindication the finding that Nicholson had no grounds for finding that he had interfered with the National Prosecution Authority (NPA). But the ruling may make little difference to Mbeki and his legacy.

There is little evidence that Mbeki was removed because of Nicholson’s finding ­ at most, it was convenient ammunition for people who wanted him out. Nicholson did not, after all, say that Mbeki had interfered, merely that he might have. And the appeal court did not say Mbeki had not interfered with the NPA ­ it found that Nicholson had no business broaching the issue. Commentary claiming that Mbeki was condemned by Nicholson was overstated, but so is the claim that he has now been vindicated.

Finally, it is worth reflecting on what this may mean for the courts. Nicholson’s judgment was tactical: it was an attempt to protect the independence of the courts in a context in which it seemed that a more straightforward judgment might have placed the judiciary in peril. This is less unusual than it seems ­ over the past 15 years, courts have designed judgments that take into account that, in a new democracy in which it is not obvious to elected politicians that they should take instructions from judges, it is sometimes necessary for the courts to choose their battles carefully so they might live to judge independently another day.

The Supreme Court of Appeal has rejected that approach ­ it insists that Nicholson had no business approaching the case in this way. In so doing, it has reaffirmed the purist view of the independence of the bench, but has courted a new assault from politicians. The key question is whether politicians will indeed attack the courts. But this seems unlikely ­ ironically, the fact that a “legal solution” seems possible has reduced the incentive for politicians to fight the courts.

So a deal that ensures that Zuma does not stand trial may ensure that independent courts remain an unchallenged feature of our democracy *1. But if this victory is gained at the expense of convincing many that politicians cannot be trusted to put the people’s interests before their own, the benefits to our constitution may be outweighed by the damage to representative democracy.

Friedman is director of the Centre for the Study of Democracy, a University of Johannesburg and Rhodes University initiative.

With acknowledgements to Steven Friedman and Business Day.