While state capture commission chairperson Raymond Zondo seems dogged, even if slow, in his attempts to imprison former president Jacob Zuma for making a mockery of the justice system, he knows jailing Zuma would not achieve much.
It is plain that Zuma’s belligerence requires stern rebuke if our criminal justice system is to retain its credibility in the eyes of ordinary people. Most will agree that Zuma did the unthinkable when he and his lawyer Muzi Sikhakhane “released” themselves from the commission late last year and also when he carried out his threat of boycotting his February 15 subpoena.
A Jacob Zuma in jail will prove that the criminal justice system in SA works, but will do nothing to help the commission explain what exactly went wrong in the nine wasted years.
In the Constitutional Court application submitted on Monday, secretary of the commission Prof Itumeleng Mosala asked the Constitutional Court to impose a two-year imprisonment term for contempt of court. But there was an important caveat: Zuma’s imprisonment should be suspended on condition he appears and gives evidence before Zondo.
It is not difficult to see why the commission is trying hard to get Zuma to testify rather than go to jail: if Zuma is jailed and does not testify at all, this leaves Zondo in a precarious position. He has one side of the story about the so-called “nine wasted years”. Given that Zuma is a central player in what went on and has been fingered in numerous statements by witnesses, arriving at conclusions without Zuma’s input is not the most ideal outcome. This is why the commission appears to use the threat of imprisonment while also giving him a way out. One of the conditions laid out by Mosala for Zuma to avoid jail is for him to provide the commission with an affidavit detailing his involvement in the affairs of two state-owned entities – Eskom and Prasa. The quest to at least get his side of the story is made all the more plain.
Indeed, Zondo could and probably would write the final report without Zuma’s side of the story. Further, Zuma’s decision to defy the commission would not invalidate the outcome of the commission. His input though would enrich a synthesis of the issues. This is why “the commission did not rush to issue summons or rush to the constitutional court to compel him (Zuma) to appear”, as Zondo explained earlier. He said the commission only did so “when it was clear that he was really not prepared to comply with the summons”.
This tiptoeing around Zuma is not always apparent but has been criticised by the Constitutional Court in a unanimous judgment by justice Chris Jafta late last year, saying the commission “treated the respondent [Zuma] differently and with what I would call a measure of deference”.
Imprisoning Zuma is what may, on the surface, be necessary to ensure he does not make a mockery of our constitutional order. But the main pursuit, it seems, is to get him to provide his version, something he’s steadfastly trying to avoid.
A Jacob Zuma in jail would prove that the criminal justice system in SA works, but would do nothing to help the commission explain what exactly went wrong in the nine wasted years. And importantly, Zuma in jail doesn’t help us know what to do to ensure the horror of his reign of economic terror is not visited upon the people of South Africa again.
