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20 July 2012

Selebi and the Shaik Syndrome

Jackie Selebi has been released on medical parole, just as CyberShrink predicted seven months ago. Read his original column below.

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Jackie Selebi has been released on medical parole, just as CyberShrink predicted seven months ago. Read his original column below which was written in December 2011.

Here we go again. Selebi is in prison, though nobody knows for how long. Though the state and the legal system were warned after the Shabir Shaik debacle that rational steps needed to be taken, urgently, to prevent a replay of idiocies of that case, it's happening again.

The remarkably un-publicised Correctional Matters Amendment Bill may possibly prevent an inappropriately rapid medical parole (it seems an untested method thus far).

It is becoming routine for celebrities and the well-connected to suddenly become ill when facing the legal consequences of their actions. Former Egyptian President Hosni Mubarrak became abruptly and dramatically ill as soon as he faced serious interrogation about his actions, as did his wife, when she also faced questioning.

But that didn't stop the Egyptian authorities from hauling him into court – in his hospital bed.

A Shaiky sense of justice

But if South Africa's already shaky justice system is to become still more Shaiky, by accepting these absurd practices, it'll become a bad joke, and trials of politically connected or celebrity accused will become pointless.

Let's be very clear about the proper medical and legal aspects of these cases. Firstly, no politician, policeman, or celebrity should be treated in the slightest way more favourably (or, indeed, less favourably) than anyone else in terms of procedures, trial, sentencing or otherwise. They must have no special privileges of leeway not available to everyone else.

There are puzzling reports of special treatment devoid of any rational justification --while a single cell might be appropriate for a senior policeman to prevent harm from other prisoners, a TV and extended visits from his wife on admission, are senseless luxuries.

Whatever the facts of Selebi's health, the delays in his reporting to jail, without proper court procedures, were highly irregular. It could have been considered contempt of court, something courts generally take very seriously indeed. I'm not aware of laws enabling a court to retrospectively approve of such behaviour even if it is eventually justified in court.  

Who's driving?

There's a pile of puzzles. His lawyer was quoted in the media as saying that she went to the hospital to visit him but, according to what she told Beeld, "due to the seriousness of his illness, he was unable to give her instructions on how to handle his case." If this is so, what or whose instructions are the basis for her acting on his behalf?

Fortunately the officials seem to have been less gullible this time, and he was, appropriately, admitted to the  prison hospital, where any necessary tests can be arranged. There he can also be thoroughly examined and assessed by a group of neutral doctors, even calling in outside (but neutral) specialists if necessary, to establish the diagnosis, prognosis and best way to manage whatever, if anything, may be wrong with him.  

Legal decisions are for judges

It is essential that decisions about his imprisonment or its conditions should not be made solely on the basis of the opinions of doctors and others hired and paid for by him or his supporters or lawyers. Otherwise, we will have made the SA legal system absurd: sentences decided by a competent judge after considering proper evidence, and confirmed by a serious appeal court after considering all the evidence again, will be obsolete.  We will be allowing his own lawyers or his own doctor to override the courts and make their own decisions as to the sentence. That is intolerable.

As we saw in the Shaik case (as illustrated by later reporting in the Mail & Guardian) some very dodgy doctors can become involved in such proceedings, whose motivations are often not clear and not examined, and whose assertions, if not tested and challenged, can lead to highly misleading opinions being conveyed to the authorities. This is why proper legal processes exist, to probe and to identify the motivations and opinions of the experts in such matters.

Very, very critical - but stable

Bizarrely, his condition was described as both "very, very, critical" and "stable". We were told he's suffering from a worsening of "a long-standing condition" - this could be dandruff or an ingrown-toenail - a wholly unhelpful comment. If indeed he has chronic diabetes and kidney failure, he may need regular dialysis while waiting for a kidney transplant. This is unfortunate and inconvenient, but not incompatible with imprisonment. Medical parole is supposed to relate to imminent death, not organisational convenience.

There will be suspicion that he may have allowed his physical condition to deteriorate so as to be better able to use it in a bid to avoid detention or at least to improve the conditions of imprisonment. Only neutral assessment can rule out such unpleasant rumours.

Go directly to jail - with secrecy intact

Yet again, secrecy was claimed and justified on the basis of a gross misinterpretation of medical ethics. Selebi would be entirely justified in choosing to keep every detail about his medical/health conditions secret, if he so chooses. And to go directly to jail with his secrecy intact.  But he is not justified in claiming very special benefits and privileges on the basis of medical issues he chooses to keep secret.

This would be the equivalent of announcing in court that he has devastating evidence which conclusively proves his innocence, on the basis of which he asks the court to immediately set him free - but, because the details of this secret evidence might be embarrassing to him, insisting on his right to keep it secret. "But trust me - you'd find it totally convincing, if only I could tell you." Ethics is not a pick-and-mix candy counter. You can't just snatch the bits that suit you and ignore the others.

The mere opinion, unchallenged and untested, of whatever doctors may be treating him should not be accepted as a final basis for any decision about imprisonment, or its conditions. It's too obvious that people in his position might be motivated to exaggerate or mislead their doctors. Any decision about whether a convicted criminal is to be kept out of jail, or released from it, should only ever be allowed after a formal court proceeding, where their opinions and relevant evidence can be presented, questioned and cross-examined, and considered along with the opinions and evidence of independent doctors who have also had full access to examine and assess him.

A syndrome, but not an 'itis

Oh, and journalists who have tended to describe Selebi's condition, jauntily, as "Shaik-itis", should be a bit more thoughtful and accurate. We can think of this as a Shaik Syndrome, as a collection of events which sometimes hang together.  But Shaikitis would have to mean an inflammation of the Shaik. And this appears only to happen on golf courses.

(Professor MA Simpson, aka CyberShrink, December 2011) 

 
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