The ANC Secretary-General, Ace Magashule, who knows a thing or two about the criminal justice system, told the media that there was nothing wrong with Jacob Zuma’s recent defiant statement that he would not comply with subpoenas issued by the Zondo Commission and that, in so ordering, the Constitutional Court was nothing but a political instrument.

Indeed, Magashule went further to say, “Why should we suspend a person who believes in what he believes in? Why should we call him into order when he’s done nothing wrong?”

He was also reported as saying that Zuma was a South African who “has his own rights”.

Let us not dwell on the obvious point that the speaker of these words is himself charged with a series of corruption charges but does not consider that there is a need to take “garden leave” until his trial is completed. He holds a most senior position in the ANC; indeed he is the public face of the ruling party. And this office notwithstanding, he can make Trump-like claims.

He demands that we respect Zuma’s beliefs, in that they are what he believes. So racists who truly believe that apartheid was an optimum form of governance should have their beliefs respected? That is the logic of the ANC SG’s argument.

The answer, Mr Magashule, is clear: everyone, including Zuma and your good self, is required to obey the law. You do not get a free pass and if you defy the law, criminal sanctions should be imposed.  

In the case of Zuma, his constitutional rights are protected. That was the upshot of the Constitutional Court’s judgment. When called before the Zondo Commission, Zuma is protected by the right against self-incrimination, as well as being entitled to the protection of a range of privilege. What the court said, however, is that he cannot obtain a blanket refusal to answer any question as was the case when Dudu Myeni led an evidence leader at the commission on a merry dance into an evidential cul de sac.

Zuma is required to explain the legal basis for invoking a refusal to answer a question. To compare this legally protected regime to that to which Robert Sobukwe (who is surely turning in his Graaff-Reinet grave at the thought that he should be compared to Jacob Zuma) was relentlessly subjected by the apartheid regime is much more the stuff of QAnon-type fiction than constitutional reality.

In this context, the following passage from the Constitutional Court judgment in the Zondo Commission case is instructive:

“The respondent [Zuma] is firmly placed at the centre of those investigations which include an allegation that he had surrendered constitutional powers to unelected private individuals. If those allegations are true, his conduct would constitute a subversion of this country’s constitutional order. It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or to clear the names of those implicated from culpability.”

State Capture took place during Zuma’s presidency. Recent evidence before the Zondo Commission confirms that the parliamentary ANC (a few commendable exceptions notwithstanding) either turned a blind eye to the widespread practice of corruption or subverted any possible investigation into nefarious practices.

The least the ANC as the governing party owes the country now is optimum cooperation with a judicial commission designed to test all manner of allegations of State Capture. For the secretary-general of the ANC to defend Zuma’s obvious attempts to subvert both the credibility of the commission and the legitimacy of the highest court in the country is itself an act of constitutional subversion. 

When Nelson Mandela was the president, he insisted on meticulous compliance with the orders of the very court his party had been crucial in creating. There was then cause for profound optimism that, unlike the racist authoritarianism of the past, the new dispensation would embrace the newly designed constitutional scheme.

That was a long time ago.  

Magashule clearly has a very different set of ideas to those who were instrumental in the design of the Constitution: Mandela, Zola Skweyiya,  Kadar Asmal, Dullah Omar, Joe Slovo, Cyril Ramaphosa, to name but a few.  Magashule’s view of the legal world is at war with the vision of the Constitution: a non-racial, non-sexist democracy based on the values of freedom, equality, dignity, and transparency and accountability of government.

The ruling party has a clear choice; either it promotes the constitutional idea or it destroys it. One cannot sustain the model of constitutional democracy so long as the ideas of the secretary-general of the ANC are central to the ruling party, which they are so long as he is SG. The choice is clear; follow the arguments of Ace Magashule, and the rule of law will be totally replaced by the law of the rent seeker. DM