Not a week after delivery of the judgment on Nkandla, and President Jacob Zuma’s subsequent apology, Zuma found himself at a gathering of traditional leaders in Pretoria. According to the Hogarth column in the Sunday Times, which is usually scrupulously accurate, the president remarked to the traditional leaders that: “I think we can resolve these matters in an African way, not through the law. You can’t stand in court and defend yourselves. You need a lawyer. The law goes to the other side. The judges convict you, even if you tell the truth.”

Given Zuma’s high office, and its accompanying responsibilities, this critique deserves further scrutiny.

South Africa’s constitutional dispensation is founded on many sound and salutary values, among them that the Constitution and the rule of law are supreme. The system is designed to ensure openness, accountability and responsiveness. Leaders and the common folk are equal before the law. The state, including organs of state like the Presidency, is obliged to respect and protect equality before the law and all the other rights guaranteed to everyone in the Bill of Rights.

The president himself is bound by an oath of office, as prescribed in a schedule to the Constitution, in which he swears that he will “obey, observe, uphold and maintain the Constitution and all other laws” in addition to protecting and promoting the rights of all South Africans.

As regards traditional leaders, the institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. Significantly in the present context, the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. In short, the Constitution and the law trump custom. As was found in the litigation over Nkandla, conduct that is inconsistent with the Constitution is invalid. The obligations imposed by the Constitution and the oath of office taken by the president must be fulfilled.

Everyone, including opposition political parties, has access to the courts for the purpose of resolving disputes. There is no reference to “the African way, not through the law” in the Constitution. On the contrary, an order or decision of a court binds all people to whom and all organs of state to which it applies. Our courts are obliged to apply the law, impartially and without fear, favour or prejudice. Without this system there would be anarchy and self-help.

Is there ‘an African way’?

The president’s invocation of the the ‘African way’ is disingenuous and possibly ambiguous. Does he hanker after settling disputes by sharpening assegais or using their modern equivalent, the AK47 machine gun? Would he prefer some sort of village gathering under a shady tree? Does he think that the strategies and tactics employed by King Shaka and his successors in the Zulu kingdom are worthy of emulation? Does he not remember that his own ancestors, according to some historians, fought on the side of the British to put a stop to the way politics worked in pre-colonial times and were rewarded for their efforts with the right to continue to live at the Nkandla settlement?

Perhaps the president was thinking not in historical terms but with greater modernity. This too poses problems. An examination of the ‘African way’ in our region of the continent reveals an absolute monarchy in Swaziland, a constitutional monarchy in Lesotho, and a virtual dictatorship run by Robert Mugabe and his henchmen in Zimbabwe. Namibia and Botswana are constitutional states, like South Africa.

Botswana is probably the most successful state in the region. Surely it could not be that the president prefers their forms of constitutionalism to ours, given their similarity. The only other neighbouring state is beleaguered Mozambique. When it eventually won independence from its colonial power, Portugal, a government gazette was issued in Maputo to the effect that “the legal system is hereby abolished”. This does not seem to have helped the citizenry much.

The consequences of the President’s longing for ‘the African Way’

From the wide variety inherent in these examples drawn from our neighbouring states, it is plain that “the African way, not through law” is a perilous, varied path, and not for those who prize the hard won freedom under law of the new South Africa.

The sad truth is that the struggle of the people for freedom has, under the leadership of the president, morphed into a struggle for power between those in the governing alliance who wish to serve the interests of the people and those who do not give this priority due to their own greed and insecurity. The president’s long-standing (but now abandoned) preparedness to benefit unduly from the nonsecurity enhancement of Nkandla, whether intentionally so or not, does not put him in the category of politicians who see service to the people as their primary objective. His longing for the “African way” demonstrates a deliberate and calculated flouting of his oath of office (again) and proves him to be yet another constitutional and legal illiterate in the top structures of the ANC.

Those who are prepared to forgive the president his trespasses in respect of Nkandla, and they are many, should be aware that his longing for “the African way” is a treacherous and a disgraceful violation of his oath of office. Those who turned a blind eye to the irregular expenditure of public money at Nkandla ought to consider the implications of wishing for a change, which abandons the rule of law, which the president is sworn to uphold, in order to substitute some nebulous dispute resolution mechanism in which the law does not play a role. Who is advising the president, that he is allowed to make silly utterances of the kind he made to the traditional leaders at this dangerous juncture in the history of constitutional democracy in this country?

Wishful thinking of the kind the president indulges in can only hasten the ratings downgrade of our economy to junk status, with dreadful consequences for the poor, especially those who depend on social grants to survive. The ability of the state to keep paying those grants (and parliamentarians’ pensions) is placed in jeopardy if the downgrades materialise. The irresponsibility of the president both in relation to Nkandla and in relation to his longing for a lawless “African way” is intolerable. He must go before he does any more damage to our nascent and fragile democratic order. The good ANC leaders, and they are many, would do well to recall the plea of Lady Macbeth in the Shakespearian tragedy:

“I pray you, speak not. He grows worse and worse.

Question enrages him. At once, good night.

Stand not upon the order of your going,

But go at once.” DM

Paul Hoffman SC is the director of Accountability Now.