South Africa

Prison Diaries Analysis

We cannot throw our whole constitutional system to the dogs, simply to keep Zuma – who has learnt nothing – out of jail

Photo of Jacob Zuma by Greg Nicolson / Daily Maverick

There is nothing to celebrate about the incarceration of a 79-year-old pensioner who, under ordinary circumstances, should be doting on his grandchildren and enjoying the fruits of his hard labour. This is a tragic moment in that it shows that, after all these years, Mr Zuma and everyone who wants to keep him above the law have learnt precisely nothing.

On the evening of 7 July 2021, former president Jacob Zuma was taken into custody to begin serving a 15-month prison sentence imposed on him the previous week for contempt of the Constitutional Court. The sentence was imposed after the Commission of Inquiry into Allegations of State Capture, chaired by Deputy Chief Justice Raymond Zondo, argued before the court that Zuma should be jailed for defying the same court’s order that he appear and testify before the commission.

Due to the amount of deliberate misinformation and general confusion out there about how these events came to pass, it is important to set out some key facts.

A commission such as the State Capture Commission (or Zondo Commission) can only be authorised by the President. Since it was established in January 2018, that President was Mr Jacob Zuma. Announcing the appointment of Deputy Chief Justice Zondo and the commission, then president Zuma issued a statement that, in part, read as follows:

The allegations that the state has been wrestled out of the hands of its real owners, the people of South Africa, is [sic] of paramount importance and are therefore deserving of finality and certainty. Accordingly, I have decided that, while the issues determined by the order require final determination by higher courts, this matter cannot wait any longer.”

 He also added:

There should be no area of corruption and culprit that should be spared the extent of this commission of inquiry. I trust that we will all respect the process and place no impediments [on] the commission [to prevent it] from doing its work.” 

Having said this, we can be justified in expecting him to testify before the commission if and when asked to do so. To be sure, in South Africa, no one is above the law, including a sitting president. This is unlike the United States of America, where a sitting president cannot be criminally charged or sued.

Once that person is no longer president, however, they can be charged for crimes committed while they were still president. In other countries, such as Israel and South Korea, sitting prime ministers and presidents have been charged and sometimes convicted. For instance, Benjamin Netanyahu was still prime minister of Israel when he was charged with corruption and fraud. Therefore, there is nothing extraordinary about charging someone in such an office.

If a president or judge were summoned to appear before a judicial commission of inquiry, they would have to appear. During the course of the Zondo Commission, President Ramaphosa and Judge Makhubele appeared and testified in line with this principle.

There have also been other senior politicians who have appeared. For instance, ANC Chairman and Minister of Mineral Resources and Energy, Gwede Mantashe, has testified more than once. Deputy Minister of State Security, Zizi Kodwa, has also testified. None of them had to be compelled to appear.

Former president Thabo Mbeki appeared before Judge Seriti’s commission to explain his role in the Arms Deal. So did former minister of finance Trevor Manuel. None of them needed to be forced by a court to appear either.

President Mandela was once summoned to appear before the high court to explain his decision to appoint a commission of inquiry into the affairs of the SA Rugby Union. It is said that he was very irritated, but he insisted on appearing despite the advice of some of his officials that he should oppose the subpoena. He wanted to show that no one was above the law, an important democratic principle.

It should be clear, therefore, that no one is exempt from testifying before a commission or court. It also goes without saying that no one should defy a commission or court subpoena either.

In Mr Zuma’s case, it must also be noted that the commission did not initially subpoena him, which is an order to appear. They chose to invite him, as they did many other witnesses who were invited to do the same. To be sure, even if they had subpoenaed him or any other witness from the beginning, there would be nothing wrong in law with that approach. They simply chose to be courteous.

To shorten a long story, after making several appearances, during which he either pleaded ignorance or took issue with being asked certain questions, he eventually decided that he had had enough and walked out of the commission without being excused by the chairman. Witnesses are not allowed to simply leave in the middle of the proceedings, but Mr Zuma did.

His lawyer, Advocate Muzi Sikhakhane, told Judge Zondo that they were “excusing themselves” from the proceedings. While saying this, he sometimes pointed his finger condescendingly at the judge. It was a stunning demonstration of personal and professional disrespect of a judge, who appears to be a naturally polite and patient person even when witnesses are being extremely difficult.

One of Mr Zuma’s complaints was that Judge Zondo was conflicted because he had once fathered a child with the sister of one of Mr Zuma’s wives, before Mr Zuma met his wife. He could not explain why he had not raised this issue when he appointed Judge Zondo to chair the commission, or on the previous occasions in which he had appeared before the commission. He also could not explain what in their “family” dealings would lead Judge Zondo to treat him differently.

That matter is before the high court. Notwithstanding, the fact that he had approached the high court to remove Judge Zondo does not suspend his obligation to obey a lawful subpoena by the commission. Having done so, the commission asked the Constitutional Court to compel him to appear. When the Constitutional Court issued an order for him to appear before the commission, he stated that he would defy its order and not appear. And, true to his word, he did not appear.

It was on the basis of that defiance that the Constitutional Court heard arguments by the commission’s lawyers, and sentenced him to serve a 15-month prison term. Mr Zuma chose not to participate in the hearing. After the hearing, the Constitutional Court directed him to make a submission of not more than 15 pages explaining why, if convicted, he should not be sentenced to a prison term. Mr Zuma told the court he would ignore that directive as well.

It was only when it became clear that he would be imprisoned that he decided to belatedly approach the Constitutional Court to rescind its decision.

There are people who contend that Mr Zuma should not be imprisoned at all because he is a former president, and because of the role he played in the struggle for freedom. This is a view that is not just held by his cultish supporters but others, too. There are also those who attribute a glowing track record of national prosperity and progress during his tenure as president that should make him immune from court sanction.

Let me explain why we cannot afford to spare him or anyone the responsibility of obeying the law.

The most obvious, narrow reason is that there is no clause in our Constitution that creates automatic and permanent immunity for anyone, no matter how powerful or revered they may be. Were that the case, a person of the stature of Nelson Mandela, who was also a sitting president, would have never been subpoenaed to testify at the high court.

Certainly, many people, myself included, were very unhappy that he was subpoenaed to testify. But it is possible to be unhappy with a court decision and still obey it.

Secondly, there are permanent responsibilities that accompany taking the Oath of Office. When he became president, Mr Zuma swore to uphold and defend the Constitution of the country. Being a president is no ordinary job but an extraordinary responsibility that goes beyond the narrow confines of the title.

It is a moral bond with all the people of South Africa that you will uphold and defend our system, whose purpose is to ensure that we are able to govern ourselves as a free people. It is absurd to suggest that once a person is no longer president, then it is okay to defy and undermine the same Constitution. In any event, it is not okay for anyone within the borders of South Africa, whether they are a citizen or not, to undermine and defy the laws of the country.

Thirdly, as a leader in many other spheres, Mr Zuma has a moral public responsibility to set a good example for others to follow. This does not just apply to matters that pertain to the courts, but good citizenship, such as not doing anything to undermine Covid-19 protocols by organising or allowing large, unauthorised gatherings. This does not only apply to him, but every leader who takes their public responsibilities seriously.

Finally, democratic institutions matter because democracy is essentially a deal based on trust. Many people with the means to defy court orders choose not to do so because it is immoral to do so. That is why our Constitution empowers the chief of the defence forces to defy an unlawful instruction from the president as commander-in-chief even if they risk being fired by the president.

There is nothing to celebrate about the incarceration of a 79-year-old pensioner who, under ordinary circumstances, should be doting on his grandchildren and enjoying the fruits of his hard labour. This is a tragic moment in that it shows that, after all these years, Mr Zuma and everyone who wants to keep him above the law have learnt nothing. As a result, they are willing to throw our entire system to the dogs in order to make one person unaccountable.

In this context, anyone who threatens public violence or actually engages in such acts, so that we have a situation where some people have the ability to simply ignore the laws of the country as they choose, must be seen as enemies of our constitutional order. If we are serious about democracy, which is not just the right to vote, then we have to hold them accountable to the system we have chosen. DM/MC

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All Comments 21

  • Distribute this excellent article among the lawless thugs in KZN via every means available, particularly via social media which seems to be the preferred means of communication of those who are orchestrating the action in KZN.

    • Of a similar character, is the adroit attempt by the head of the provincial authority (Premier of KZN) to CR to ‘pardon’ JZ for his utter contempt (and continuing) of the law ! Instead of appealing to the thugs who are orchestrating the mayhem to stop (they probably are supporters of him) their thuggery and vandalism, he shifts the responsibility to CR. No doubt … as premier he has access to significant resources to ‘deal’ with or confront this danger … but NO … that would mean diminishing ‘popularity’ !

  • Well done indeed to the courageous writer of this article- it sets out in the clearest terms as to what is correct and ethical in terms of the law! Would that it could have a readership where it is most needed, at grassroots level!

  • The phrase “has learnt nothing” in the heading and concluding paragraph of this article are delightful … in that it reminds me as the quip by an American linguist regarding the claim that Trump had attended some of the finest schools there … “and he learnt nothing there!” was his retort. Precious !

  • This reminds me of a ‘friend’ I had a couple of years back. After a luckless day of fishing I eventually caught a juicy big one. I rushed to the car to fetch the cooking utensils we had ,to cook it ,but by the time I got back he had eaten it all(sushi guy).Too stunned I decided we had to get back home. A few minutes latter he started having abdominal cramps and a moment latter started vomiting and then profuse diarrhea. It was MY fault he said( I caught the fish). At the ER ,where I dropped him ,I made a point telling the nurses the story before phoning his wife. You can imagine her conversations with the staff at ER. Selfishness, refusing to take responsibility and having no shame is what makes this former friend and Zuma of the same plumage. If laws are disregarded what follows is anarchy and ALL of us will suffer.

  • grant us a little bit of celebrating that zuma finally went to jail, it is the least we are due after years of his taunting and abuse of the constitution and the judicial process.

    Just a week of schadenfreude then we will go back to serious and responsible if not sympathetic.

    • Precisely. As long as he spends time in prison there is some small helping of justice. He will no doubt avoid any punishment for his selfish destruction of the country.

  • This is all well and good …however is this message,commentary put to his followers in a language they can understand?

    • Sadly, his supporters don’t dare read “white media” articles, lest the pesky facts sully his victimhood narrative! They would rather read IOL and such type of drivel-riddled publications. Incidentally, I have to wonder, listening to Zuma’s speeches at Nkandla whether he even believes the lies he feeds his blind supporters. Or he is only too convinced that his sheep will not nearly read honest commentary on them.

  • It has just dawned on me that the one question this good article (like many others) does not answer is : Does this imprisonment mean that JZ is/will no longer be required to appear before and give testimony at the Commission ? In simple language …. he can continue to give Zondo and the commission the ‘up yours’ sign !

    • quite the opposite. prison will “help” you to honor every subpoena issued.
      he will be available whether he wants to or not as the prison is responsible for his whereabouts for the next 15 months and – hopefully – no more BS funerals and health conditions will affect his appearances.

  • Excellent article ….there is nothing to celebrate re a 79 year old….but everything to celebrate when a constitutional delinquent is committed. May Jimmy Manyi read this piece and stop his illogical diatribe re an “unfair trial”. An embarassment to the ANC and current leadership. Sadly we get what democracy delivers …a conundrum ?

  • The basic question is why Zuma did not simply appear before the commission? It is not a trial. If innocent and not aware of corruption under his watch surely he would want to know what went on and who did what. If he was aware and aided the corruption process he could simply lie like the Singh’s, Molefe’s, Gigaba’s et al. He had a simple choice jail or to appear before the commission. He chose jail.

    • My guess is that he thought that there would be some sort of martyrdom in going to jail. He was right to an extent as we’ve seen from the recent damage but that won’t have much longevity and the trouble makers will retire to the shebeen soon to discuss their heroics. Once there and boasting they’ll be easy targets to be picked up and join their idol in jail.

    • There is no way jail was a voluntary choice or strategy, far more likely was the delusional sense of entitlement (as revealed by the demeanour and utterances by JZ and his lawyers in court) continued until it faced the inevitable gravity of his disrespect of the ConCourt judges driven by misguided egomania. Bad move.