Dr Klaus Kotzé is Honorary Research Affiliate at the Centre for Rhetoric Studies, University of Cape Town.

Zuma asserts that it is not him, but the state that is behaving in an unconstitutional manner. In his challenge to the Commission of Inquiry into Allegations of State Capture, Zuma alleges that he cannot conscientiously comply with the commission as its terms, and therefore the entire commission, are irregular.

He says the Public Protector “recommended that the chairperson of the inquiry be appointed by the Chief Justice and not the President as is the normal and correct legal procedure”. On these grounds, Zuma claims that the commission chaired by Judge Raymond Zondo is legally invalid and that he therefore cannot legally engage it. Only if Zondo recused himself would the commission not be illegal.

“Had Judge Zondo simply recused himself,” said Zuma in his 4 July 2021 media conference, “the people of South Africa would have heard my version.” In an affidavit, Zuma says: “I do not believe that it was established in terms of the Constitution… that issue will be the albatross around the neck of its legitimacy.”

Zuma builds from this foundation, asserting his innocence. He maintains that the commission’s actions against him were invalid. Conscious of his centrality to the commission, he must have anticipated that as the former president, or simply to assure his compliance, it would provide him with certain privileges. He was right.

In its judgment ordering Zuma to answer to the commission, the Constitutional Court found that the commission was indeed biased and had afforded Zuma special treatment; “no reason was furnished for this favourable treatment to the former president. The commission was alive to the fact that the Constitution requires the equal treatment of witnesses under the law.” This judgment should not be misconstrued. It was a major victory for Zuma’s strategy to discredit the state’s authority.

Zuma’s defence in his corruption trial follows a similar approach. His special plea and his call for acquittal are based on the argument that advocate Billy Downer has no title to prosecute; that the state has an illegitimate prosecution and that thereby the state is illegitimate. Again, while his stratagem may not achieve his personal ends, it primarily seeks to asperse the authority of the state. 

When served with an order from the Constitutional Court to attend the commission, Zuma did not oppose. Instead, he maintained that he could not participate in the proceedings of an illegitimate commission. By compelling him to attend, Zuma argues that the Constitutional Court was itself acting illegitimately by advancing an invalid institution. It follows then that when Zuma was asked to submit to the court’s requests, to comply with the summons from the commission, he refused. Instead, he wrote a lengthy letter casting aspersion on the justices of the Constitutional Court, alleging the court to have become politicised and thereby failing to uphold the Constitution.

Political subversion

Throughout, Zuma has maintained that he does not regard himself as being above the law; that his actions should not be construed as being defiant to legal processes. Instead, says Zuma, he is being defiant of those who are failing to uphold and apply the law. This is a political charge that seeks to subvert state institutions to the realm of politics.

Zuma’s refusals to comply with the legal orders, and his arguments that the state has denigrated his constitutional rights are charges of injustice committed against his person. His claim of being a conscientious objector who is “not scared of going to jail for my beliefs”, suggests that his is the just and authoritative approach.

This is unprecedented. Much of what he says and does has legal and other experts confused. How could he, guided by his lawyers, not see his arguments to be legally irregular and irrelevant. Herein lies the rub: by making a passionate claim about state affairs as applied to his person, he is not making a legal but instead a political argument that seeks to elevate political above legal authority.

Zuma makes the affairs of the state a matter as applied to individuals and not about the dispassionate application of constitutional ideals and principles. By personally challenging state institutions, Zuma subjugates the ends of the state to the ends of politics. He uses his stature to peddle misrepresentations about his supposed poor health and financial strain. He misdirects, saying that sending him to jail during the pandemic would be a death sentence. This performance seeks to ensure that the courts engage him personally. When legal rulings are made, he contorts them into being political, stating that judges are biased and have vendettas against him.

Zuma’s populist claim is that legal power is constrained, that the constitutional order is ineffective in achieving the revolutionary ends of the liberation movement. Instead, it is only through politics that the ends of the materialist revolution, or simply Radical Economic Transformation, can be achieved. To Zuma, the constitutional state was always a means towards the ends of the revolution. Unconstrained political power, where the ends justify the means, is therefore the superior and legitimate approach. 

Equating constitutional democracy with apartheid

The greatest challenge to the South African state is for the constitutional order to be popularly delegitimised. A central charge Zuma employs is to liken the constitutional to the apartheid state. He knows very well that the just and legitimate South African order is seen relative to the unjust, immoral system that preceded it.

Constitutional legitimacy is founded upon it perpetually surmounting and transforming the illegitimacy of the apartheid regime. Zuma has increasingly equated his current treatment to that which he experienced under apartheid. He says that the commission is behaving “exactly like the apartheid government”, alleging there to be “a judicial dictatorship in South Africa… like the injustice of apartheid”. In his letter to the Constitutional Court, he states: “I had never imagined that there would come a time when a democratic government in South Africa built on constitutional values would behave exactly like the apartheid government.”

Zuma lambasts the current regime; “I am very concerned that South Africa is fast sliding back into apartheid-type rule”. He compares his treatment to that of Robert Sobukwe’s arbitrary imprisonment and says that lockdown has “all the hallmarks of a state of emergency and the curfews of the 1980s… the substance is exactly the same. Being jailed without trial is not different to the apartheid detention without trial.”

This latter claim, of being jailed by the Constitutional Court ruling as a court of first instance, has become a primary and powerful proof in his strategic argument. By equating the democratic with the apartheid regimes, he legitimises any action against it; “I am left with no other alternative but to be defiant against injustice as I did against the apartheid government”.

Subverting order to disorder

Zuma and his acolytes instigate disorder. The violent protests that are spreading throughout the nation do not only recall the anti-apartheid tactics of sowing instability and fear. They are justified by Zuma insisting that the democratic state is akin to the illegitimate apartheid state.

By defying its orders, Zuma challenges the state institutions to pronounce and to act against him. By demanding that the high court declare on a Constitutional Court judgment and then to say if the court does not find in his favour that anarchy will descend over the country, is an existential threat. Zuma does not only pit the courts against each other, he maliciously contends that the minority judgment of the Constitutional Court signifies contention between judges. Zuma knows that the Constitutional Court has no operational force, that its legitimacy resides in precedent and trust. By muddying judicial precedent and suggesting judicial discord, he provokes others to follow his destabilising course.

Not only does he personally attack the judges, but he also uses the values whereupon the state is founded against itself. Accusing the state of not upholding constitutional values, while rejecting these values in his invective not only flies in the face of the national project, it seeks to derail the transformational and reconciliatory national project. Leaders are expected to embody the ideals that afford the state legitimacy. Zuma uses politics, rejects ideals, and breaks the state down.

Moving forward

When we look beyond Zuma’s ad hoc postures, we see a calculated and consistent strategy to undermine the supremacy of the constitutional order. Though he may have handed himself over, count on him to use his acquiescence as a proof to further his greater strategy. It is time to look past individual misdemeanours. If his plan of attack is not appropriately rebuffed, his followers and others will increasingly employ similar, fundamentally dangerous approaches. The state cannot merely deny Zuma’s assertion that it is illegitimate. It must prove its legitimacy by charging those whose intents and actions threaten its fundamental existence. DM