South Africa

ANALYSIS

Jacob Zuma and the beginning of the end of the Age of Impunity

Former president Jacob Zuma testifies at the Zondo Commission of Inquiry into State Capture in Johannesburg. (Illustration: Leila Dougan | Photo: Felix Dlangamandla / Netwerk24)

The decision by the Constitutional Court that former President Jacob Zuma must spend 15 months in prison suggests that the next five, (possibly eight) days could well determine our future as a nation. If Zuma goes to jail, as ordered, it may be the beginning of the end of the Age of Impunity. If he somehow avoids that fate, if indeed the power of politics is more powerful than the power of the law, then we will go down a different path.

It is rare to find a former head of state sentenced by a court to time behind bars. The world’s oldest sustained democracy has not done it (although it may do so soon), many other countries have also been unable to do it (though France has been rather harsh to two of the three previous presidents). It seems likely that this is a test that we will pass: on balance it is more likely that Zuma will go to jail than not, despite the loud support he will receive over the next few days from some corners of South Africa. But the other test of this will be in the ANC, and whether it is in fact on the path to its renewal.

There are many elements of Greek tragedy and irony in Tuesday’s ruling.

The irony is this: the court ruled that the former president must lose his freedom not because he allowed people to steal from us, not because he cheaply sold us out to the Guptas, not because he attempted to divide our nation further, not because he received money from Schabir Shaik, but simply because he refused to obey a Constitutional Court order that he must testify at the Zondo Commission.

To put it another way: he’s going to jail for refusing to give evidence that he has said he wanted to give, to a commission he himself appointed. If it feels absurd, it is because it is absurd.

At least four of the Constitutional Court judges were appointed by him (two were appointed by President Cyril Ramaphosa and two others are acting judges of the Constitutional Court).

The element of Greek tragedy comes from the inevitability of this.

From 2004 onwards, when the first evidence of the payments made by Shaik to Zuma was heard in the Durban High Court, through the conviction of Shaik, the laying of charges against Zuma, the Mauritian documents application (which led to Western Cape Judge President John Hlophe attempting to influence two judges), Mokotedi Mpshe’s ridiculous decision to withdraw the charges on the eve of the 2009 elections, the Zuma Spy Tapes case, his attempt to keep a chief justice in office for longer than constitutionally allowed and then finally the Nkandla judgment, he has been at odds with the law.

Somehow, it was always going to end like this, with a Constitutional Court judge deciding he must go to jail.

Despite his Struggle history, his contribution to democracy and peace in KwaZulu-Natal and his 10 years on Robben Island, it has come to this.

And all because he has refused to give evidence. If it sounds a bit weird, it is because it is weird. There’s a chance it was a calculated set of moves all along, but possibly an entirely new type of chess will have to be developed to understand the strategy.

The next step, of course, is what happens next.

The clock is ticking, as the court gave him only five calendar days to report to the Nkandla Police Station or the Johannesburg Central Police Station. If he fails to do that, the police commissioner and the police minister have three calendar days to arrest him.

Already his supporters, Mzwanele Manyi and Carl Niehaus, are claiming that he is the victim of the court, that he has been unfairly treated.

His son, Edward Zuma, claimed that he would “lay down my life” to prevent his father from being arrested.

There may be only three realistic options, as it could happen in this world.

He can simply comply, go to jail and wait out his time, or make some kind of application for early release based on his age and health.

Or he can skip the country and go wherever he may have friends and resources. Perhaps his son Duduzane Zuma could take some time out of his campaign for the leadership of the Ward 11 branch of the ANC in KZN to show him around Dubai.

Or he can fight. 

The problem with the last option is that he has very little to fight with. The Constitutional Court is the apex court and there are no other legal avenues. He does not appear to have the support within the ANC to really win any kind of major political battle that would put so much in danger to protect the man many personally cannot stand.

Any kind of large-scale violence, certainly of the sustained sort that would be needed to stay out of jail, does not appear realistic. While the threat of violence is always there, it seems unlikely to materialise in any significant way, despite the threats of Edward Zuma.

In the meantime, there are the implications of the judgment for the ANC. It released a statement on Tuesday afternoon saying it had noted the judgment and its top leadership would discuss it.

Whether you are Malusi Gigaba, Health Minister Zweli Mkhize, Deputy President David Mabuza, Joburg Mayor Geoff Makhubo, or just a local councillor making money from your position, you are now much more vulnerable.

This is a major problem for the party. It has consistently said that its members and its leaders must comply with the Zondo Commission and must testify. The party itself has testified through President Cyril Ramaphosa. The national executive committee, of which Zuma is an ex-officio member, has said many times that people must do this. The party resolved at Nasrec that its members must cooperate with the Commission.

And yet… Zuma is not just any ordinary member of the ANC. He is a former leader, the person who dominated the party from 2007 until 2017, the dominant force of easily the past decade of our politics.

It would appear virtually impossible for the party to reverse its position now. To do so would be electoral suicide. So low is Zuma’s standing in society, so detailed the evidence of corruption both implicating him and enabled by him, that the party may have no choice but to do what it must to ensure that he goes to jail.

Meanwhile, there is one person who can do virtually nothing and simply watch events unfold, and yet everything will be to his benefit.

President Cyril Ramaphosa is unlikely to lament Tuesday’s ruling.

At one stroke it removed his unloved predecessor, a person who has tried to sabotage his agenda and a person who could cost his party votes. And Ramaphosa has to do nothing, merely ensure that the court order is enforced.

Certainly, this would appear to again tilt the balance further towards him, to increase his power within the ANC.

But none of this is really what matters from Tuesday’s ruling.

What matters is the impact it will have on other politicians who have shown themselves to believe they are above the law, that they can steal, and cheat, and lie, and that so long as they win elections, nothing will stop them.

This ruling shows that anyone, no matter whether you were head of state, no matter whether you twice took the oath to protect the Constitution, no matter whether you were the Commander-in-Chief, the law still applies to you.

This means if you are, or have been in government and engaged in corruption, you too could go to jail.

Whether you are Malusi Gigaba, Health Minister Zweli Mkhize, Deputy President David Mabuza, Joburg Mayor Geoff Makhubo, or just a local councillor making money from your position, you are now much more vulnerable.

If Zuma can go to jail, so can you. The rule of law applies to you too.

There have been many steps on the road to the place of impunity where we have sat for so long.

But a key moment was perhaps the ANC’s celebration of Tony Yengeni when he reported to serve his jail term for the discount he received on a car as part of the Arms Deal in 2006. The Sunday Times reported that he was met inside by Correctional Services Minister Ngconde Balfour.

That was a signal that it was prepared to elect a man facing criminal charges as its leader at Polokwane in 2007. All that followed was somehow inevitable.

Perhaps, just perhaps, the image of Zuma going to jail on his own, with no honour guard of ANC leaders, no Speaker of Parliament to escort him, no Cabinet minister to welcome him… perhaps that would be the beginning of the end of the Age of Impunity. DM

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All Comments 36

    • I agree Len. Stephen indeed has the ability to see through the smoke and mirrors and in a few words says it all. His last two sentences are lost telling.
      The Constitutional Court, criticized by many commentators for taking so long, delivered the most unbelievable, well thought through, judgement without gaps, question marks. A ruling that can, and will, change the trajectory of our still young democracy.
      Thank you Stephen.

      • For SA to truly cross the next rubicon since ‘94 it needs for show that the law applies to the struggle heroes. Though to prevent the inevitable perception of the evil hand of WMC, the court could expedite the prosecution of Markus Jooste. The pair of them walking hand in hand to “sun city” is what we all need.

  • While I applaud the judgement of the Concourt and heartily hope that many more just judgments will follow, there is an impression that judges only set this in motion when it touched the dignity and authority of their courts and commissions. We have countless instances where judges failed to act against their own, when the ones suffering loss were not their own. The twelve years of impunity enjoyed by John Hlope being just one example.

    • You make a good point Susan. But I think it is more the judicial services commission that has the responsibility for sanctioning judges. If I understand the (apparently broken) system correctly, judges cannot just simply decide to prosecute somebody. There has to be a complaint / charge laid. It is up to the JSC to monitor the performance of the judiciary and they seem incapable or unwilling to do so.

    • You are right, but at least it appears that the highest court of the land is doing its job. Unlike the highest appointees in the police. Still we are waiting for the arrest and charges to be laid against Malema for organising an illegal march (gathering) last Friday.

  • Do not underestimate the deviousness of humankind. Example. Despite Lula’s (erstwhile Brazilian president) jailtime as a corrupt racketeer he succeeded in the country’s courts to nullify his crime so he can again stand as President – and guess what? He is an extremely popular guy. He will probably make it.
    SA is but the younger sibling of the incredibly corrupt Brazilian society. It would be wise to regard this small victory of good over bad as a temporary gain in the field of ethics and morality.
    The showerhead man is to old to fight on and it is just his ego and a couple of thickheaded supporters that still motivates him to push on.
    The man may be removed from society, but humankind’s underlying dark side will remain on Earth for a very lo-o-ong time.

  • A brilliant read. Now all that remains is to see how this is handled and the outcome of that decision. Anything can happen in a young African Democracy. It can go either way. I hope it goes the right way!

  • As you say Stephen, it’s inconceivable that this could happen in Europe or especially the USA, where politically appointed judges kowtow to the whims of the president who appointed them.
    We should all be extremely proud of our Judiciary .

    Despite all of our frustrations with Ramaphosa, he’s played the long game, sat back & allowed these low life bottom feeders to weave their own rope. Hopefully it’s Ace’s turn next & Juju not far behind……

    • Hiram, your last paragraph has got me worked up. How much has been stolen while the long game was being played out. Cyril must stop playing flippin games and do his job. His job is to do his best for the people of this country but he can’t while he’s playing a game of chess – particularly using business strategy against a trained KGB agent. It seems to me that Cyril is tripping over his ego and is completely shame faced because he knows that he is letting every South African down except the ANC cronies.

      None of this has anything to do with yesterdays judgment which is very minor in this whole catestrophe but hopefully many more such judgments will start turning the tide.

      There is nothing personal in this either.

      • Charles – I agree 100% with your sentiment regarding cr. Letting all in SA down for the sake of the anc! I applaud you

      • I disagree with your criticism. ‘Half a loaf is better than no loaf’ and if CR had come charging into the rot of the ANC, there would now be no CR and NDZ would be President.

      • Charles, everyone seems to forget that out of a total of 4, 700 votes cast at NASREC in 2017, Cyril won the ANC presidency by a mere 179 votes . The margin of his victory was so fine that it could have so easily gone the other way.

        Think of NDZ as president, her autocratic conduct & the moronic Marxist-style edicts during the COVID lockdowns says it all. Imagine her being in charge, backed & emboldened by the RET faction & the rest of those thieving clowns. It could have conceivably been the end of our democracy & none of us would be sitting here having these discussions.

        The ANC is a cesspit of ruthless corruption, dishonesty, deceit & fraud. To a large extent, it’s not much more than a criminal cabal masquerading as a govt. top heavy with thieves & their cronies, who care about nothing else other than short term self-enrichment.

        Anyone who thinks that Cyril after his narrow victory, could have waded straight into that cesspit with all guns blazing, is dare I say, extremely naive.

        This situation is still to play itself out & there’s still a long road ahead.

        • Hiram, I accept what you say and I understand that politics is a marathon and not a sprint but it really gets my goat to hear something like ‘we have to stick with what we have because it’s the best that we have’. For a country that has produced so many top quality people we seem to have no ideas and while we’re fiddling things are deteriorating so rapidly that one has to be sleep walking not to notice it.

          I recently left the city for the first time in two years and drove 400 km east and I was shocked by what I saw in the small towns. My concern is not about me, it’s the increasing poverty that I see around me and unless we can get improvements to filter down to the bottom levels we’re going to have chaos because poor people are more alarmed that I am. My take on this is that the populists will continue gaining ground so long as we continue on this path and, in any event, the swing votes in the ANC will always remain in untrustworthy hands.

          Enough of this, we need to move on and my apologies if I caused offence.

          • No offence at all Charles, & I agree with your observations.

            Strangely enough last week I had a similar experience to yours. I drove down to N KZN, via Standerton, Morgenzon, Ermelo & beyond Pongola, approx. 600kms. I was shocked at the state of these towns & the dire state of poverty that I encountered everywhere.

            Given how far things have sunk under this govt. I can’t see how these people can ever be uplifted. It’s a nightmare scenario & becoming a generational issue with no end in sight.

    • Like Myeni’s lawyer, and Zumas’ old short one who did the walkout. They were absolutely rude to Zondo and showed him the finger.

    • Zuma defied a direct order from the Constitutional Court, not DCJ Zondo, hence jail sentence. But I’m sure the SIU is watching and taking notes.

  • “But a key moment was perhaps the ANC’s celebration of Tony Yengeni when he reported to serve his jail term for the discount he received on a car as part of the Arms Deal in 2006.” Has anything changed? Let us wait for the next 8 days and see …. “That was a signal that it was prepared to elect a man facing criminal charges as its leader at Polokwane in 2007. All that followed was somehow inevitable.” Most of the current bunch were there as part of the anc when it happened and said nothing.

  • If the former president does go to prison, can we assume that he will therefore be ‘available’ for all future court and Zondo Commission appearances?

    • He will most probably very soon be allowed (by presidential pardon) to join his ‘terminally ill’ buddy, Shaik on the gholfcourse. So NO …

      • And even if not, he will be out within 4 months, as per Pierre de Vos. And then the charade will start all over again. It is vital that the NPA move fast within those 4 months, so that Zuma can spend more and more time in court rooms, close to some holding cells.

  • Stephen, an excellent analysis. I do enjoy reading your articles.
    But one oversight. You say that seldom has a democracy jailed a head of state. But Israel has jailed at least one head of state, and it too is a young democracy of only 73 years.

  • I can hear the old man laughing as I write. There is no way this guy is going to spend one day in jail. And I agree, our Constitutional democracy hangs on this of that there is no question. And more interesting, the days of KZN believing it is a country independent of the rest of South Africa are now numbered – well, that is if the old man goes to jail. He won’t though.

  • Surely now the ANC should discipline Zuma for bringing the organisation into disrepute? Especially given the scathing remarks of the majority judgement.

  • Unless it is my failing memory, I seem to recall last night on one of the SABC programs, a daughter of Zuma claiming they would proudly escort him to prison ? A rather different take from that of the son, who is consistent with the Juju attitude ! As one commentator said … it would be an attempt to portray himself as a ‘martyr’ or ‘hero’ … akin to the madiba ‘if needs be … a cause for which I am prepared to die’ – but falsely so.

  • First of all let me compliment DM and your colleagues. I have just watched DCJ Zondo praise the Investigative Journalism in this country, without which the Commision would not have known a lot of what had been going on. Now, is zuma still in the country?

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