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Nkandla: Has the Law Failed?

Siya Khumalo writes about religion, politics and sex. He is the author of ‘You Have To Be Gay To Know God’ (Kwela Books, 2018), which won the Desmond Tutu-Gerrit Brand Literary Prize. Follow him on @SKhumalo1987 (Insta and Twitter), or like his Facebook page With Siya Khumalo.

Our law is a platitude, a suggestion, now. There is nothing to rule with or rule over except votes and voters. That’s what laws and citizens are reduced to once the first citizen has violated the law with little consequence. And a democracy that is skeletonised can only decay or cannibalise itself. The ANC has made the law of no effect.

Why a women’s league and not a men’s league? I’ve wondered. Is sexism’s centring of men in serious political discourse such a self-evident given, and by contrast women’s political activism so novel and remarkable, that it must be the ANC Women’s League that has an explicit reference to gender in its name?

In 1912, the liberation party was a boys’ club. It signed women on in 1918. Its initial (but tacit) purpose was freeing black people from unjust racial laws so that they could live freely by any combination of what Zuma has described as “African ways”, and global norms.

In those African ways, men are family heads and women are nurturers. ANC Struggle activists would, at first, have balked at the idea of it being women facing the legal consequences of challenging unjust pass laws. So, women were there to stand by their men despite the horrible things said about them by the system and its custodians.

It may have been a stroke of political genius for the ANC Women’s League to stand by JG Zuma when rape charges were brought against him, as they’ve done now with the Nkandla Constitutional Court ruling.

The rape trial deteriorated into a kangaroo court to portray Khwezi* as a temptress brought in to ruin Jacob Zuma’s destiny as head of the ANC household, just as Thuli Madonsela was accused of being a CIA agent.

Justice” is here defined as the power to install someone into the system to capture it through the household head’s “licence to loot.” In public discourse, the Chief Justice’s precise Nkandla ruling was replaced by the murmuring of our other Chief representing another Justice. As usual, the ANC Women’s League made it “unequivocally, unambiguously and categorically clear” that they would “firmly stand behind the ANC president, Jacob Zuma”. The rest of the party followed suit and to many black South African voters, this is good.

Other black South African voters are aware of what’s happening and are very angry; many others aren’t. Others are seemingly conflicted, spouting indefensible nonsense that the ANC is not one person. But to know a bit about Nkandla is to know enough to know what’s at stake; to vote ANC, then, is to create a gap between the law and justice, equating the ANC and/or Zuma with justice. To this considerable voting bloc, the ANC’s unity in the face of an “unjust” legal system is a much higher priority than upholding constitutional law.

Vast numbers of black people are several steps removed from constitutional justice and seek instead the “justice” offered by the ANC; that is, subversion of the rule of law. The prioritisation of white and moneyed privilege, literacy and language barriers, geography and many other obstacles eclipse constitutionalism from their awareness.

The ANC gives itself to people instead of the eradication of poverty, the promotion of meaningful education, the confrontation of systemic and social racism or many other essentials that could displace the ANC from its voters’ consciousness.

You’re hungry? The ANC is the bread of life, the party that was blessed in heaven. What do you need facts for when you have religious fervour to pin your hopes on? Anyone who tries to find fault with Zuma is finding fault with the only party that’s fought the system for you. When the ANC shows its power to protect its own by holding together despite attempts to tear it apart, it’s reiterating its commitment to protect you from Them.

You may think this idea of state capture as “justice” only appeals to beneficiaries of Zuma’s patronage network, but ordinary black South Africans don’t see the connection between the law and justice.

Until the institutional pillars of our democracy reverse the effects of apartheid, those institutions are seen as rightful targets for capture and consolidation by a black political leader. The selfishness of his motives for gobbling the government are of secondary importance; the separation of powers just sounds like a distancing of recourse more terrifying than the invasive closeness of the apartheid government’s abusive repression.

The whole Constitution then looks like justice deferred and not justice defended.

Shocking, this thought must be to honest civil servants, that the thing they thought they were mandated to do by voters – uphold the independence of various government institutions – is exactly the thing the voters will rise up to oppose in the ANC’s favour time and again. The Freedom Charter’s vision of redress powered by the nationalisation of key industries is superimposed over, passes itself as, and excuses the ANC’s merging of, various government sectors.

Long-story short, voters will not make the law work until justice works. If the women’s league is still a novel idea after all this time, then a constitutional law that protects black people is an even more unbelievable notion even after all this struggle. This Constitution is not what black people were promised and they don’t see a connection between what they were told they’d get and what they did get.

You and I may agree that the the law is just, but it has not done enough (or been used sufficiently) to redeem and explain itself to the public. The ANC wouldn’t want this because if that happened, the standard against which its members should be judged would become exceedingly clear and they would be found wanting.

But there are also white people who wouldn’t want justice because justice, demonstrated, would halve their privilege overnight.

The only thing that would protect white privilege then is that there is no law against it. BEE doesn’t count. It’s black economic empowerment, not white socio-economic disempowerment. For this reason, the law’s proclamation on Zuma has no effect in many black people’s socio-economic consciousness of justice. What makes Zuma’s scandals scandalous is that while other politicians who have got way with murder were as white as their voters were, he is as black as his voters are.

The privileged don’t grasp how profoundly the underprivileged see justice and law as inconsistent realities. #FeesMustFall was many students’ attempt to highlight how law and order can subvert justice, but the hashtag has been exploited by those who’ve never had to live in that gap and cannot imagine how personal and painful this situation (or how great the sacrifices to explain and resolve it) is.

I was travelling towards Gateway in Umhlanga when I saw gym poster ads. Broadcasting a decrease in their rate, their copy read, “#FeesMustFall.” A slogan that arose from the flesh-and-blood struggles of a betrayed generation has been seized for a sexy plastic, muscle and steel privilege of a gym membership fee announcement. Zuma might be spending money that would have been used for your school fees, but he at least knows about the struggle to get an education (!) and has the acting skills to pretend he didn’t realise what was happening under his nose. In comparison, whoever made that poster probably also benefitted from a system that took money that could have been used to pay for black students’ education, but is too busy enjoying his lycra-clad privilege to really give a damn. And that’s just one example.

Since Zuma’s criminality is not seen as exceeding that of the system that hypocritically dignifies its accusations against him, and by extension, against those who rebel against oppression (as with the student uprisings), while the patina of black struggle is stolen by criminals who happen to be white and have no criminal record because they continue to benefit from a system that has consistently shielded them from getting their hands dirty (upholding the moral whiteness of whiteness at all costs), that system cannot be supported.

The reason our law won on Thursday but failed on Friday is that it was stillborn 20 years ago. Zuma pays lip service to Mandela signing it into being because words are cheap, and he lives in a home worth well over a quarter-billion rand. The most exquisite legal prose that’s been drafted this century failed to rouse a country to its feet because, like the Latin in which legal parlance is coded, the law is a dead language to many listeners. UWC Professor John J. Williams has said,

On the verdict against the current president of South Africa, April 2016: Let it be stated categorically that to judge any situation atomistically, ahistorically, is extremely myopic, meretricious and reactionary! Here it has to be asserted, unequivocally, that the nature of the SA Constitution has to be interrogated, historically and contextually: First, it didn’t derive from the historical-materialist conditions in the South African/African context, but it’s largely a hodgepodge of idealistic/utopian snippets of declarations compiled by so-called ‘experts’, mostly linked to imperialists, behind the scenes!

This explains why these ‘drafters of the Constitution’ and their allies are today multimillionaires and billionaires whilst the majority of South Africans are EXTREMELY POOR!!! – who can possibly deny the most glaring fact that they sold out the POOR, BRAVE South Africans who fought against colonialism-cum-apartheid (cf eg GEAR, and all other paper interventions, called ‘policies’!

Second, the precedents to the 1994-post-apartheid settlement’ are inextricably linked to the killing of PRINCIPLED community leaders such as Steve Biko, Chris Hani, and thousands of young, brave student activists, etc.

Accordingly, let it thus be asserted, affirmatively, that throughout the Annals of Human History ‘Nothing is more dangerous than a political system that claims to be [ ] the Truth’.”

And nothing is more dangerous to many black South Africans than a legal system that does not remember its genesis.

Much is missing from Professor Williams’ status that he probably never intended to include. I would have commended the Apex Court Justices and their colleagues for bravely, iterating the law in the clearest terms possible.

At any rate, our law is a platitude, a suggestion, now. There is nothing to rule with or rule over except votes and voters. That’s what laws and citizens are reduced to once the first citizen has violated the law with little consequence. And a democracy that is skeletonised can only decay or cannibalise itself. The ANC has made the law of no effect.

Julius Sello Malema is promising ordinary South Africans that the Nkandla hearing was not just a hollow legal exercise. That in his party’s hands, it will be translated into a meaningful step towards justice to and for all. Unless other elements of South Africa can see the need to do that quicker than he does, his promise to stitch the difference between law and justice will take him all the way to the position from which he’s unseating Jacob Zuma.

In the words of the inimitable Richard Poplak, Malema “will almost certainly be the president of the country one day. South Africa is not fixed – but it has been rendered fixable. One hopes [Julius] sees this fact as worthy of celebration, and not a loophole to one day be closed.”

One hopes Malema does not close the loophole by some day using the law to enforce a status quo that benefits him while oppressing the people he’s now rescuing from the division between law and justice. DM

Follow Siya Khumalo on twitter @SKhumalo1987

* Not her real name


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