DM168

DM168 Justice Op-Ed

We must defend our democratic laws

Illustration: James Durno

The president, the ruling party and the citizenry must demand accountability and rule of law.

First published in the Daily Maverick 168 weekly newspaper.

“Our democratic Constitution is the product of years of sacrifice and struggle. Many South Africans endured great pain and hardship, and many lost their lives, so that we could live in a democracy where all may enjoy equal rights. The values, principles and rights contained in the Constitution are neither trivial nor abstract.” – President Cyril Ramaphosa, President’s Newsletter, 22 February 2021.

Somewhere there is a photograph of the ANC’s Cyril Ramaphosa and the National Party’s chief negotiator, Roelf Meyer, taking a break during the constitutional negotiations, seemingly relaxed sans ties.

The picture belies the mammoth task with which they were engaged. It was essentially to make something out of nothing. For the Constitution represents South Africa’s attempt to overcome its past and deal with its present. Theirs was an unusual friendship forged around our transition to democracy and the drafting of a new Constitution. In between their shared love of fly-fishing, they got the job done. The Constitution itself bears testimony to the optimism of those early years of our democracy.

This past week, the political moment required that Ramaphosa defend that very Constitution. This time he was president of the republic and the attacks on the Constitution were from those within his own party.

It is worth remembering that then secretary-general Gwede Mantashe launched an attack on the courts, citing them as “problematic” and further declaring there were “some sections” of the court system driven by a desire to “create chaos for governance” in South Africa. His deputy Jessie Duarte followed suit with similar criticisms.

He said, pointedly: “We should therefore be concerned when those who occupy prominent positions in society make statements that demonstrate a disdain for the basic principles of our Constitution and the institutions established to defend our democracy.”

Attacks on the Constitution have become almost commonplace, especially in the past two weeks as former president Jacob Zuma again failed to appear before the Zondo Commission. In its late January judgment, the Constitutional Court ordered Zuma to do so.

For someone who said he wanted his day in court, Zuma is surely doing everything to avoid it. This time his lawyers argued that Zuma could not appear before the commission because he had launched a judicial review against Deputy Chief Justice Raymond Zondo’s decision not to recuse himself.

It’s all rather contradictory. Zuma himself appointed Zondo to head up the commission, after all. Zondo has now passed the parcel back to the ConCourt and the commission is applying to the apex court to find Zuma in contempt of court. The commission will argue that a fitting sentence is imprisonment and not a fine.

The rule of law remains axiomatic to any functioning constitutional democracy. One of the defining moments of Nelson Mandela’s presidency was the moment he took the stand in the case of the President of the RSA and Others v South African Rugby Football Union & Others in 1999.

In 1998 Mandela had appointed a commission to investigate allegations of racism, nepotism and corruption against Sarfu. Sarfu approached the court to stop the work of the commission. Judge William de Villiers saw fit to subpoena the president himself to give evidence as to why he ordered the probe.

This sparked much debate about whether the president should have to defend his every decision in court. Mandela chose to do so in this case, and was subjected to a lengthy cross-examination by Sarfu’s legal counsel, Advocate Mike Maritz. Justice de Villiers eventually ruled in favour of Sarfu, setting aside the government’s inquiry and called Mandela “an unsatisfactory witness”.

This is an important bit of legal history.

That Mandela was prepared to place himself in such a position of scrutiny before a court was a singular act of leadership, possibly the most important of his presidency. It not only showed his commitment to the rule of law and the Constitution, but was also a visible reminder that no one, not even the president of the republic, was above the law or above being held to account for his actions.

Mandela recognised that the alternative to a constitutional democracy was rule by the whim of the powerful, which was anathema to the struggle for justice. His was an action aimed at embedding a culture of constitutionalism during a period of intense political and social change.

Even though the final Constitution was the product of negotiations and public participation on a scale SA had not experienced before, Mandela knew only too well that a Constitution is only really as strong as the ability or inclination of those in power to submit to it.

Zuma alleges that the Zondo Commission was designed purely to ensure that he is the sad scapegoat. Moreover, and in what is perhaps more sinister, he accuses the ConCourt of political bias. It’s all a conspiracy and the courts are acting in concert with dark forces to ensure only one thing: the demise of Zuma. In this narrative, Zuma becomes first victim and then martyr. We have been here before with Zuma – remember his rape trial? Corrupt to the very core, Zuma is predictably using every obvious trick in the populist’s playbook to stay out of prison.

Aiding and abetting Zuma is ANC Secretary-General Ace Magashule, who sees nothing wrong in Zuma flouting the Constitution. There is truly no honour among thieves.

Joining the unseemly fray is the King of Spectacle, EFF leader Julius Malema. Doubtless Malema sees some cheap political gain out of the cup of tea he had with Zuma at Nkandla. This is the same Malema who in 2008 cried, “We are prepared to take up arms and kill for Zuma”, but then did an about-turn to “Pay back the money”, creating years of mayhem in our democratic Parliament by thuggery on the House floor during the State of the Nation Address (SONA).

Malema’s actions should come as no surprise, however. He has always been without principle and himself faces serious allegations of corruption in relation to the VBS matter.

But, in a country where shame is a rare commodity and impunity reigns, this remains a mere detail. Zuma has predictably gathered the desperate and dodgy of our political landscape in an attempt to evade justice. It’s the same playbook, just a different year.

And we cannot forget that the marks of Zuma’s constitutional vandalism are writ large in every aspect of South African public life. There is an overwhelming body of evidence in the public domain that details the looting of state coffers, the wrecking of our public institutions by his cronies, and the careless disregard for the rule of law. During her investigations into the enhancement of his Nkandla home, Zuma consistently questioned Public Protector Thuli Madonsela’s recommendations on Nkandla and her authority to even make such recommendations. By his very actions he consistently undermined that constitutionally mandated body.

Although Ramaphosa’s words in the newsletter provide some comfort, will we, the people, ultimately be prepared to stand firm to protect and defend the Constitution and march in its defence should that moment arise?

Anti-constitutional utterances from some within the ANC are not new. This is also worth recalling, if only to indicate the degradation of the ANC itself and the hollow shell it has become.

Let us cast our minds back to 2015, when the High Court in Pretoria ruled that our government’s failure to arrest then Sudanese president Omar Al-Bashir was unconstitutional. By the time the judgment was handed down, Al-Bashir had already left the country, yet it was vital to establish that the state is not above the Constitution.

It is worth remembering that then secretary-general Gwede Mantashe launched an attack on the courts, citing them as “problematic” and further declaring there were “some sections” of the court system driven by a desire to “create chaos for governance” in South Africa. His deputy Jessie Duarte followed suit with similar criticisms.

Going even further back, to 2012, the ANC’s Ngoako Ramatlhodi launched a harsh attack on the judiciary while delivering a lecture in honour of 1940s ANC president AB Xuma. Ramatlhodi accused the judiciary of seeking to undermine the executive.

When Ramaphosa delivered the 2021 SONA recently, he failed to address the “rule of law” question while Zuma was brimming with defiance for the Zondo Commission. Then, Ramaphosa missed an opportunity to put his head above the parapet and speak, as head of state, in defence of the Constitution.

In fact, just ahead of SONA, Ramaphosa, asked about Zuma’s defiance, said rather meekly: “Let’s give former president Jacob Zuma time and space. People are counselling him. All of us need time to reflect and think.”

Those words suggested that Ramaphosa was doing the usual political dance and hoping for an “ANC solution” to appease Zuma and coax him into doing the right thing. The problem with that strategy is that it makes Ramaphosa look weak on the rule of law, forever trying to reconcile the irreconcilable within his party.

Finally, however, Ramaphosa wrote a strongly worded newsletter in defence of the Constitution. It felt like too little too late, however welcome his words.

Ramaphosa, as one of the architects of our Constitution, should know better than most that what is at stake is the very essence of our democracy and the pillars of accountability on which it is built. The Zuma years hollowed out our democratic institutions, which are now being repurposed with great difficulty.

As South Africa fights the economic and social fallout of the Covid-19 pandemic, it is clear that it can only do so within the framework the Constitution provides.

In the unanimous judgment of the Constitutional Court in the Nkandla matter, Chief Justice Mogoeng Mogoeng spoke clearly about the kind of state the Constitution envisaged – one that is accountable to the people. This applies to public representatives and the president in particular. He states: ‘“For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

The words of the Chief Justice stand as a stark reminder of the bulwark the judiciary formed against our constitutional order being completely destroyed by Zuma and his corrupt cronies.

This is a moment, not only for Ramaphosa and the feckless ANC he leads but also for all of us as citizens, to demand that the reckless and unaccountable, even – perhaps especially – a former head of state, be held to account.

Anything less would be a betrayal of Madiba and the founding fathers and mothers of our constitutional democracy. To be sure, there have been several acts of betrayal, but we cannot avert our gaze. We need, as Teju Cole has said elsewhere, “to [give] things their right names” when speaking truth to power.

Although Ramaphosa’s words in the newsletter provide some comfort, will we, the people, ultimately be prepared to stand firm to protect and defend the Constitution and march in its defence should that moment arise?

That is perhaps the rather more salient question. After all, any Constitution is only as strong as not only the ability and willingness of those in power to adhere to it, but also the willingness of the country’s citizens to defend it. DM168

Judith February is a lawyer and author.

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.

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  • But how, Judith? If we had an election today, even without a campaign that produced damning evidence of ANC pornographic misrule, the majority who are most affected by their misrule would elect them again for lack of a viable champion alternative. Until the ANC implodes or divides, we are stuck with crooks as our rulers.

  • Great article. BUT (this could be a base for your next article) Why does the Press attack the biggest democratic opposition party? Surely we should encourage the opposition to grow? Not to divide and trash what is good or even what is just the best we have? The DA runs the best province and best city and towns in SA. Give credit where credit is due. You write well as do a number of other journos, so how about a positive article or ten about the democratic opposition. PS: Tiny parties are ok but will have no positive effect on a change of government. Roughly speaking, there are only three effective parties in SA, pick your one!