Opinionista Omphemetse S Sibanda 4 February 2021

Clear and present danger: Jacob Zuma’s defiance of the rule of law puts us on a perilous path

The current saga of Zuma vs Zondo Commission vs Constitutional Court has all the hallmarks of a clear constitutional crisis and provides ample chance for opportunists to take the country back to the abyss of anarchy, despotism and lawlessness.

“You can roughly locate any community in the world somewhere along a scale running all the way from democracy to despotism.” This is a line from Encyclopaedia Britannica’s 1946 film, Despotism. Which way is South Africa running?

“Ours is a young democracy. It is a constitutional state, the supreme law of which is a Constitution that is an extremely progressive one by world standards. Like all Constitutions, it sets out the basic framework of the system of governance in this country. It also provides a blueprint of the type of South Africa we aspire to become, it thus tells us, in broad terms, what we are, how we are governed, what our rights and entitlements are and also what our responsibilities or obligations are. Implicit in its provisions, however, is a vision of what we can be.”

These words were famously penned by the late Deputy Judge President of the Constitutional Court of South Africa Justice Pius Langa in his journal article “A New Constitution and a Bill of Rights” [p115].

“I have no doubt that a correct reading and application of the Bill of Rights demonstrates that it is a document of our time. An instrument which attempts, as best it can, to meet the needs of today and of our community,” Langa added [p117].

But who are we trying to fool? The continuing scandalous allegations, revelations and admissions before the Zondo Commission tell us a different story. A story of a retrogressive democracy. Can South Africa still call itself a beacon for emerging democracies? An article by Conor Colasurdo and Rebecca Marlin in the Fordham International Law Journal titled “South Africa’s Constitutional Jurisprudence and the Path to Democracy: An Annotated Interview with Dikgang Moseneke, Acting Chief Justice of the Constitutional Court of South Africa” noted that the late US Supreme Court Justice Ruth Bader Ginsburg suggested that “Egyptians look to the South African Constitution, rather than the US Constitution, as inspiration for the Egyptian constitutional drafting process” [p285].

RBG, as Ginsburg was affectionately called, should be regretting her premature advice from her grave. The fall-out between former president Jacob Zuma and the judiciary, particularly with the latest judgment of the Constitutional Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (CCT 295/20) [2021] ZACC 2 (28 January 2021) begs many questions.

Worth repeating here is the declaration by the Constitutional Court of what is one of the best cardinal principles of constitutional democracies: “In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in force, laws must be obeyed” [para 87].

Mr Zuma did not waste any time in rubbishing the judgment of the Constitutional Court. In what is surely about to go down in history as the great Zuma fightback, the former president immediately released a statement denouncing the jurisdiction of the Constitutional Court over him. Zuma, directly and indirectly, claimed that the democratic government of South Africa and the judiciary have behaved duplicitously and that he has been sabotaged and made a sacrificial lamb by some from his circle of comrades.

Most importantly, he argues that he has been treated as persona non grata in a country that he has sacrificed so much for. Zuma claims that his constitutional rights as a citizen of South Africa have been arbitrarily taken away by the Constitutional Court and the Zondo Commission.

Mr Zuma put forward that he will not abide by the order of the Constitutional Court as an act of civil disobedience by someone who is persecuted for doing nothing. The crux of his argument is that he is once again made to suffer the marginalisation that he endured under the apartheid regime: “I had never imagined there would come a time when a democratic government in SA built on constitutional values would behave exactly like the apartheid government in creating legal processes designed to target specific individuals in society.”

I am sort of eating humble pie for previously voicing an opinion that we may yet be pleasantly surprised to hear the former president coming to testify fully and truthfully at the Zondo Commission. Perhaps it was my displaced yearning to hear someone telling us that the unhappy and unfortunate chapter between the commission and Mr Zuma was about to close and that sanity would prevail.

Going back to my favourite comparison between the Zondo Commission and the Australian Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (See here, here and here), the Fitzgerald Inquiry revelations and report were an albatross for the government of Queensland Premier Mike Ahern.

Similarly, the tugs-of-war, revelations and report of the Zondo Commission will be President Ramaphosa’s ANC-led government’s albatross. However, unlike the Ahern government, one cannot say Ramaphosa’s government is besieged because of all the allegations, revelations, admissions and fallout playing themselves out at the Zondo Commission.

The silence of the ANC-led government to come out in defence of the judiciary and the Zondo Commission is deafening. The seemingly paradoxical relationship between our executive branch of government and the judiciary is under the spotlight.

Politicians see the judiciary as fair game (read here). Julius Malema, the Commander-in-Chief and leader of the EFF who is also one of the members of the National Assembly representing Parliament on the Judicial Service Commission (JSC) that appoints judges, has in the past not hesitated to slate judges and the judiciary in general (read here).

For those who see nothing wrong in powerful individuals like former president Zuma stating publicly that he will defy the order of the Constitutional Court, it is a disgrace. What is more disturbing and disgraceful is the disservice they are doing to Mr Zuma by trying to justify his defiance by comparing it to that of former state president PW Botha, who refused to appear before the Truth and Reconciliation Commission (TRC).

His tweets regarding a tea meeting with Mr Zuma this coming weekend have raised eyebrows and generated divergent debates and views concerning his position regarding Mr Zuma defying both the Zondo Commission and the Constitutional Court (read here, here and here). Some have even asked if the weekend will see a devil’s pact between Malema and Zuma.

For those who see nothing wrong in powerful individuals like former president Zuma stating publicly that he will defy the order of the Constitutional Court, it is a disgrace. What is more disturbing and disgraceful is the disservice they are doing to Mr Zuma by trying to justify his defiance by comparing it to that of former state president PW Botha, who refused to appear before the Truth and Reconciliation Commission (TRC).

Perhaps they base their comparison on common factors between the two presidents because Botha labelled the TRC as “a circus and a witch-hunt against apartheid leaders” (read here), Botha, according to reports, “warned that the Afrikaner people would fight back if threatened and said they were already organising to ensure the protection of their rights.”

It was reported by the South African Press Association (Sapa) that the ANC subcommittee on the TRC said that Botha’s defiance of the TRC “was of serious concern and would not augur well for nation-building and reconciliation…”. Zuma and his supporters call the Zondo Commission a witch hunt, with Deputy Justice Raymond Zondo as its hitman against Zuma.

Despite everything, let us not forget that PW Botha did temporarily face the consequences for failing to obey a subpoena to appear before the TRC (read here). He appeared before presiding magistrate Victor Lugaju at the George regional court, in case we forget. He was convicted of contempt of the TRC and was fined R10,000, or a one year suspended sentence.

Subsequently, Botha won on appeal when Judge Selwyn Selikowitz of the Cape high court ruled that the TRC acted ultra vires when it issued the subpoena against Botha using an expired legal mandate (read here).

I am raising further points on the Botha-Zuma defiance comparison because there is nothing so dangerous as half-truths and sweeping statements made in an effort to sway public opinion. It is a pity that Mr Zuma did not present himself before the Constitutional Court for his side of the story to be heard.

The current saga of Zuma vs Zondo Commission vs Constitutional Court has all the hallmarks of a clear constitutional crisis and provides ample chance for opportunists to take the country back to the abyss of anarchy, despotism and lawlessness. Every Tom, Dick and Harry will seize this moment to speak out and encourage the establishment of a system where law and order are displaced with anarchy; and where the judicial and legislative functions of the republic are just tokenism.

To borrow from George Orwell, “don’t let it happen. It depends on you.” In his best-known parody novel, Animal Farm, Orwell sounded a stern warning about, among others, the evils of authoritarianism, totalitarianism and any other freedom, law and order-destroying powerful-ism. The fictionalised Orwell retorted the following in a film (watch it here) recreating the novel, Animal Farm:

“Allowing for the book, after all, being a parody, something like 1984 could happen. This is the direction the world is going in at present. In our world, there will be no emotions except fear, rage, triumph, and self-abasement. The sex instinct will be eradicated. We shall abolish the orgasm. There will be no loyalty except loyalty to the Party. But always there will be the intoxication of power. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who’s helpless. If you want a picture of the future, imagine a boot stamping on a human face, forever. The moral to be drawn from this dangerous nightmare situation is a simple one: don’t let it happen. It depends on you.”

Some of our politicians are prepared to stoop to the lowest possible depths. As the book The Nature of Despotism: From Caligula to Mugabe, the Making of Tyrants by Tom Ambrose states, such leaders use ceremonies and scapegoats to distract their people. Of critical importance to them is “building a personality cult”, and they are good in the “pretension to and control of culture and the myth of efficiency”.

Again, do not let it happen. My sentiments may just be a pipe dream that voices of reason will be victorious at the end — after all, this is Africa. Not enough is heard from the congregation of the church of democracy, law and order. The voices of human rights lawyers and activists in the protection of the judiciary and the rule of law are very dim. Civil society seems to be oblivious to the dangers that will befall it if the rule of law and law and order are displaced by “you can do as you wish” governance. To borrow words from Bruce Springsteen and The E Street Band: “Come on! Rise Up!” Defend law and order, unless you want to live in a country and a city of ruins.

President Ramaphosa and his government should also “Rise Up!” I am yearning to hear someone from the ANC-led government say that “we are in for better days,” the same words used by Russ Hinze in his promise to the Queensland opposition when telling them to expect better government and introduction of reforms in parliament once the corrupt Sir Joh Bjelke-Petersen was gone.

I am fearful of what is to happen next. Are we about to see the dissolution of the Constitutional Court like the Malian president Ibrahim Boubacar Keïta did to his country’s constitutional court that had overturned provisional results for parliamentary elections in March 2020?

Just to refresh your memory, Bjelke-Petersen was Queensland’s premier exposed by the Fitzgerald Commission of Inquiry to have been involved in corrupt practices, and who inherited a poisoned chalice. For Ramaphosa the poisoned chalice is not only his own ANC but the government as a collective which was also clearly poisoned at the time he assumed power.

Ironically, he assumed power having to be a part of and a key role player in the poisoned environment. It is hoped that amid the hurly-burly, President Ramaphosa will come out of the woodwork and assure the nation that we are still a country of laws and not of men.

I am fearful of what is to happen next. Are we about to see the dissolution of the Constitutional Court like the Malian president Ibrahim Boubacar Keïta did to his country’s constitutional court that had overturned provisional results for parliamentary elections in March 2020?

Or are we about to see a dreaded “Democratic Republic of South Africa Must Fall Movement”? Whatever is to happen as a result of the fallout in the Zuma v Zondo vs Constitutional Court saga, we cannot allow ourselves to descend into another lawless African country, with leaders who exalt populism, violence and a lack of law and order to be relevant.

Leaders like the former president of the US, Donald Trump, who loves the rule of law — as long as it targets his enemies.

Our Constitutional Court should not be allowed or allow itself to lose its role as the guardian of the Constitution. To borrow words from PW Botha, whose TRC defiance has been conveniently compared to Zuma’s defiance of the Constitutional Court and the Zondo Commission, the imminent danger we are facing as a country is that the defiance and disrespect of our judiciary places the country “on a very dangerous road”.

The fable from the animals’ point of view told by Orwell is now more relevant than ever to our country. Like animals in the Orwell novel, some in South Africa will remain naïvely hopeful up until the very end when nothing is left to show for our hard-fought democracy. We have and continue to ignore the subtle hints that things are no longer at ease; the centre seems no longer able to hold; and that things are falling apart in South Africa.

The ANC as the governing party and opposition parties are jointly and severally to be blamed for the situation in which we find ourselves. Like the animals in Orwell’s novel, the gap between South Africa’s optimism and the harsh reality of how things are is there for everyone to see.

The Constitutional Court said that nobody is above the law and that we are all equal before the eyes of the law. The political reality at the moment is that some people are more equal than others. DM

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  • “The political reality at the moment is that some people are more equal than others.” Agreed. The solution is not complex. The ANC secretary must stand down.

  • “Our Constitutional Court SHOULD not be allowed or allow itself to lose its role as the guardian of the Constitution.”

    Our Constitutional Court MUST not be allowed or allow itself to lose its role as the guardian of the Constitution.

  • This is an excellent piece, thank you.
    I am just curious about the comment about the opposition parties & their joint and several liability – how would you suggest they effect any change or make an impact without the majority power?
    The majority of the citizens of our country do not care about the Constitution – they care about their own survival, no matter how they are able to do so. The ANC have managed to continue feeding the mostly poorly educated and desperate majority with the narrative of going back to a “white dominated govt” ala apartheid if they do not vote for the ANC. The fact that the ANC has delivered nothing of substance over 26 years is weighed against the fear of going back. I certainly understand that fear and agree that we should never go back to that de-humanising, soul destroying, demeaning era of our history.
    What I do find baffling however is that most of our citizens, whether they are educated middle class citizens or very under -privileged citizens, do not challenge the ANC to deliver on their promises & hold them accountable. All is forgiven at the polls when an ANC t-shirt & bag of groceries is offered just prior to elections.
    Come on SA – let us move from a struggle mentality to demanding performance from elected officials in our country. In that way we can all grow our wonderful country & take our place amongst the most progressive economies in the world, which will match our world class constitution.

  • The parallels and comparisons the prof makes are pertinent. Take the example of one of the oldest ‘democracies’ in the world – India. From its liberation from British imperial rule, over decades of misguided Congress rule, it has now slid into a Modhian theocracy (Modhi being the high priest … nay ‘god’ one should say) with huge populist support. Having identified Muslim Indians as the enemies of a so-called secular state, it is now identifying the mainly Sikh led farmers strike as the next enemy to confront. No doubt the Christians and Buddhists will be next. Beware the moderate Hindus also! Authoritarianism has the inbuilt ability to destroy itself eventually. The tragedy is the destruction (like climate change) it wreaks along that sometimes long and tortuous path. I guess ‘evolution’ is a slow process !

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