SA’s Constitutional Court is now the last line of defence in preventing the breakdown of SA’s hard-won constitutional system, for which so many gave their lives.
It stands between SA’s full plunge into becoming a typical postcolonial African failed state, whereby the phenomenon of two classes of citizens becomes entrenched.
In one class are the presidents, leaders of governing parties and traditional leaders who are above country constitutions, democratic institutions and laws.
In the second class are ordinary citizens, who are not connected to the president, party and traditional leader elite, who are punished if they do not adhere to the constitution, democratic institutions and laws. The two-class phenomenon is one of the key reasons for the low growth, low quality and low development in postcolonial African countries.
The outcome of the deliberations by the Constitutional Court on whether to send former president Jacob Zuma to jail for contempt of court for defying it and the Judicial Commission of Inquiry into Allegations of State Capture, will determine whether the country’s constitution, democratic institutions and laws can be bent to the will of current and former leaders and governing parties.
This is a defining moment in SA’s post-apartheid history. Zuma is challenging not only the legitimacy of the constitution, democratic institutions and laws, but that of the Constitutional Court itself.
The ANC leadership clearly do not appear to grasp that Zuma is challenging the legitimacy of SA’s constitutional system by defying the Constitutional Court and the Zondo commission — or they lack the moral courage to defend the constitutional system against Zuma.
On Friday, the Constitutional Court heard arguments by the state capture inquiry, which rightfully pleaded that Zuma be held in contempt of court for refusing to comply with the court’s order to abide by the commission’s summons, directives and orders. The commission is calling for the Constitutional Court to impose a two-year jail sentence on Zuma. Judgment has been reserved.
Refusing to take accountability for his actions, Zuma has pursued a strategy aimed at destroying the authority, credibility and legitimacy of the Constitutional Court itself.
He has tried to broadly discredit the judiciary by attacking the institution, including the Constitutional Court, as being under the alleged thumb of President Cyril Ramaphosa, serving the interests of the president and that of white business, the so-called “white monopoly capital”. And of being allegedly opposed to “radical economic transformation”, the term used by him and his political allies for the package of populists policies they favour.
He has made personal attacks on deputy chief justice Raymond Zondo, the head of the state capture inquiry, trying to show that the judge has an alleged personal vendetta against him, and therefore should be removed.
He has threatened to mobilise his supporters to come to his “defence”. His supporters have threatened violence to “defend” him. The potential that his supporters could unleash violence is apparently driving fear into the hearts of ANC leaders, and making them want to strike a deal with Zuma. Yet, in a democracy, the state is the only legitimate authority that can exercise violence — not any individual.
Zuma is apparently also hoping the threat of violence from his supporters will also frighten ConCourt judges into not sending him to jail.
Lastly, Zuma has been campaigning with ANC general secretary Ace Magashule, who is also facing corruption charges, to topple Ramaphosa as ANC leader. He will then apparently take control of the ANC, and through it the government, and then try to quash or delay forever all investigations, prosecutions and corruption charges — as if it would be that easy.
Zuma’s behaviour is typical of African dictators, autocrats and fake democratic presidents who believe that constitutions, democratic institutions and laws do not apply to them.
They routinely defy courts, appoint puppet judges and make courts defer to governing leaders and parties. If the courts hold firm, they fire the judges. Most African leaders refuse to leave office — to ensure they control judiciaries, prosecuting authorities and police services, so they can never be held accountable in their lifetimes for corruption, crime and wrongdoing.
In the cases where African leaders do reluctantly leave office, they ensure they appoint their lackeys as their successors, who provide them immunity from prosecution for corruption, crime and wrongdoing. African leaders therefore can almost never be held accountable for corruption, crime and public service delivery failures, misbehaving with impunity.
Zuma’s behaviour is typical of African dictators, autocrats and fake democratic presidents who believe that constitutions, democratic institutions and laws do not apply to them.
Ramaphosa was not Zuma’s choice to be his successor. Zuma wanted his ex-wife, home affairs minister Nkosazana Dlamini-Zuma. When Zuma was asked by ANC leaders to resign as president in early 2018, he initially refused, seeking assurance for immunity from prosecution for wrongdoing during his presidency. He did not get an immunity from prosecution deal from Ramaphosa — because SA’s laws do not allow for immunity from prosecution.
Nelson Mandela was conscious that African leaders mostly suppress judiciaries. In 2011, Mandela, without complaining, became the first head of state in SA and Africa to defend a presidential decision in court. At the time the then head of SA Rugby Louis Luyt took Mandela to court to be grilled about his decision to set up a commission of inquiry to investigate alleged racism, corruption and nepotism in rugby.
Mandela was summoned to appear in court by then judge William de Villiers. Mandela had reservations about appearing in court to account for his presidential decisions. He feared that a precedent may be set where all legitimate presidential decisions may henceforth be challenged in court. But he felt it was more important to show that no-one was above the law, not even a president, including a president of his moral stature.
Mandela’s legacy of entrenching during his presidential term the supremacy of SA’s constitutional system, democratic institutions and rule of law is now in peril.
William Gumede is associate professor, School of Governance, University of the Witwatersrand, and author of South Africa in BRICS (Tafelberg).
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