EDITORIAL | Grant Zuma’s wish and arrest him or SA will face a constitutional crisis

The decision by former president Jacob Zuma to defy an order of the highest court in the country for him to appear before the state capture commission will surprise many. Yet it ought not to. 

In a constitutional democracy it is expected that everyone, including serving and former presidents, will show a healthy level of deference to the highest court. After all, this is a separate branch of the state. A body that can declare sections of, even nullify, legislation enacted by representatives of the people. 

But Zuma has, over the years, shown disdain for SA’s laws. Indeed, his disregard for legislation and rules is the reason his tenure as a president is characterised in some quarters as the country’s “nine wasted years”. His Stalingrad approach to litigation seems to underpin a mistaken belief that it is his way or the highway. The very existence of the commission of inquiry into state capture is largely because he, almost single-handedly, brought our country to its knees. 

In what appears a desperate call to whatever remains of the support he once enjoyed, Zuma on Monday said he did not “fear being arrested”. He added that if not appearing before the commission, headed by deputy chief justice Raymond Zondo, “is considered a violation of their law, then let their law take its course”. This is the same Zuma who, a few years ago, promised to uphold the constitution (and, of course, failed), but this supreme law of the land has now become “their law” in his eyes. 

His Stalingrad approach to litigation seems to underpin a mistaken belief that it is his way or the highway.

The former president notes that he has not said he did not want to appear before the commission, but that he did not want to appear before Zondo, ostensibly because of a disputed friendship. This is plain obfuscation. Zondo, at the commission, dismissed his claim. Zuma then didn’t want to appear before the Constitutional Court to explain why he believes Zondo is wrong, but has the temerity to now rubbish the court. 

He wants all of us to agree that because he doesn’t want to appear before Zondo, it means the entire democratic state is now acting like the apartheid government that jailed him for 10 years at Robben Island. “I do not fear being arrested. I do not fear being convicted, nor do I fear being incarcerated.” He is mistaken. It is not his lack of fear that must trouble us, it is his lack of respect for the law. His expectation was that because he went to Robben Island he could do with our country what he wished and there would be no consequences.

Meanwhile, all South Africans require from him are simple answers to claims made against him by tens of witnesses at the commission. He has, on innumerable occasions, professed his innocence. But why would one so innocent be prepared to go to jail simply because he is not prepared to answer questions? Zuma must be granted his wish. 

It is clear that jailing the former president will not help us understand state capture any better. But giving him anything less than his wish to be arrested for defying or, most aptly, peeing on our constitution, is to unleash a constitutional crisis. If Zuma can defy the Constitutional Court, who must heed its decisions? The law must not simply be applied, it must be seen to be applied to all, including Zuma.