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Zuma – Law, Order and Incarceration

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Dr Brij Maharaj is an academic and civil society activist.

There are various factors and forces contributing to South Africa’s current predicament, but the crux is the failure of the ANC government to obey and implement law and order as per the Constitution.

Laws exemplify the moral and ethical values of society. The rule of law should and must be sacred and sacrosanct, and must be implemented without fear or favour. However, politicians and their cronies masquerade as if they are beyond the law.

This tendency is not unique to South Africa. In 1991, Kenyan Attorney-General Amos Wako asserted that “a characteristic of the rule of law is that no man, save for the president, is above the law”.

Since February 2009, judges in the US have ruled against President Donald Trump’s executive order banning travel from Muslim majority states because it violates the country’s constitution as it discriminates on the basis of religion. Washington State Attorney General Bob Ferguson, who supported the ruling, said: “The constitution prevailed today. No one is above the law – not even the president.”

American Justice Louis Brandeis, in a famous dissenting opinion in 1928, contended that:

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously … government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example … At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen … If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

These sentiments are particularly relevant to South Africa’s contemporary crisis. In recent years, the government has been on the receiving end of scathing judgments in matters ranging from Nkandla to social grants.

The most recent case would be Judge Bashier Vally’s ruling relating to Zuma’s irrational Cabinet reshuffle in March 2017:

It is no exaggeration to say that it was received with shock, alarm and dismay by many. One reason for this is that it came on the heels of an extensive public complaint that incessant malversation had embedded itself in our public life and that the country was mired in the quicksand of corruption … The executive power conferred upon the president in section 91 (1) of the Constitution is circumscribed by the bounds of rationality and by section 83 (b) and (c) of the Constitution. The president accepts, at the very least, that the exercise of power has to meet the test of rationality.”

There are inevitable, spurious allegations of judicial overreach. KZN Provincial ANC chairperson, Sihle Zikalala, warned about the capture of the judiciary: “There is an increasing tendency of courts finding themselves meddling in national critical issues and taking positions which if not stopped will undermine the judiciary system and put it in a political battleground and finally fall prey to judiciary capture.”

The rule of law applies to all citizens, including politicians and the government, and is an “enabler of justice and development”.  According to the International Development Law Organisation (IDLO), the rule of law “is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them.”

Not surprisingly, the constitutional goal of creating “a society based on democratic values, social justice and fundamental human rights” recedes further into the distant horizon, and the majority of South Africa’s poor and disadvantaged are betrayed as those entrusted to loot the country.

Since the release of former Public Protector Thuli Madonsela’s State of Capture report, shocking evidence and systematic academic analysis reveals that “how South Africa is being stolen”. Following hot on the heels of the South African Council of Churches’ “Unburdening Panel” report, a group of respected scholars from four universities and various disciplines have argued that state capture is a “political project of a well-organised network that strives to manage … (a)… symbiotic relationship between the constitutional state and the shadow state”.

The academic report “suggests that South Africa has experienced a silent coup that has removed the ANC from its place as the primary force for transformation in society”. Further evidence of state capture was revealed in e-mails from within the inner sanctums of Gupta Inc. published in the Sunday Times and City Press this weekend, which implicated senior ANC politicians and government bureaucrats in doing their bidding.

Zuma has denied that he plans to relocate to Dubai where the Gupta conduit has transferred a significant amount of South African resources. Religious leaders have argued that Zuma has lost the moral authority to lead SA, and “clever blacks” (and those of other hues) contend that he has a poor record in making rational decisions as the head of government. 

So what is Zuma’s purpose, goal and direction? An editorial in Business Day on 1 December 2011 succinctly captured President Zuma’s modus operandi when it argued that he has acted persistently “to draw around him an iron ring of men he relies on to keep him safe. South Africa and its interests are not part of this particular calculation. The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does”. If Zuma supports the implementation of law and order, he risks incarceration. DM

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