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Opinionista

The rule of law is under threat in our country

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Judith February is a lawyer and author of ‘Turning and Turning: Exploring the Complexities of South Africa’s Democracy’ (PanMacmillan)

As former president Jacob Zuma seeks to defy the Zondo Commission – and in so doing, the Constitution – the message sent is one of impunity writ large. The ANC has become almost apologetic about the Constitution it helped craft 25 years ago.

Don’t discount our powers;
We have made a pass
At the infinite.

Robert Frost, Kitty Hawk

A delegation of the “Top Six” within the ANC recently visited Jacob Zuma in an attempt to persuade him to appear before the Zondo Commission and fulfil his constitutional obligation. That one of the members of that delegation, Secretary-General Ace Magashule, is himself facing criminal charges shows just how far the party has strayed from its ethical centre. 

The same party mobilises its members to cheer on those who face corruption charges for stealing from the poorest of the poor in the VBS Bank scandal, holds vigils at court ahead of Zuma’s corruption trial appearances and turns a blind eye to men in paramilitary gear stationed outside Zuma’s Nkandla homestead. 

In the background the mostly unintelligible Bathabile Dlamini mobilises the ANC Women’s League into action in defence of the corrupt and incompetent. A ragtag bunch of Zumarites including Carl Niehaus and Tony Yengeni (a convicted criminal) lead the charge for Zuma as they spout words like “radical economic transformation” and declare “white monopoly capital” the enemy of progress in our country. All binaries in service of a dangerous populism. 

Others within the ANC like Jessie Duarte, Gwede Mantashe and Ngoako Ramatlhodi have in the past felt comfortable enough to attack the judiciary. 

Aiding and abetting the corrupt faction within the ANC is the EFF, now comfortably positioned as defenders of the compromised Public Protector while their leaders themselves are implicated in the VBS scandal. 

It is convenient to attack both the Constitution and the judiciary. They do so to protect their own interests and to keep the networks of State Capture in place. The repercussions of Zuma’s defiance of the Constitution must therefore be seen in the context of a governing party that has lost its way and an emboldened Zuma who has repeatedly shown himself capable of constitutional vandalism. 

Let us make no mistake, we are at what political theorist Achille Mbembe, whose seminal work, On the Postcolony, continues to define much of the debate around the characteristics of post-colonial Africa, calls a “negative moment” – a culmination of the Zuma years that were marked by a lack of openness and transparency, by increased securitisation of the state, marked inequality, economic paralysis, intolerance and the abuse of democratic institutions. This is also a moment of disease and unease as South Africa’s unemployment rate has reached record levels of 32.5% and inequality deepens. 

A near decade of State Capture means the kitty is bare. Higher Education, Science and Technology Minister Blade Nzimande robbed Peter to pay Paul when he announced funding for universities amid student protests last week. Something will have to give in this toxic mix of impunity, want and the everyday violation of rights. 

When Madiba inaugurated the first Constitutional Court he told us it would be “a court on which hinges the future of our democracy”. How right he was. 

He went on to say at the adoption of the final Constitution in 1996: “Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”

It has now become fashionable to blame Madiba and the Constitution for everything that has gone wrong in post-apartheid South Africa. Given the challenges South Africa faces, it is easy (and perhaps inevitable) to slip into reductionist thinking about the Constitution itself – that it is an imported liberal concept and not worth the paper it is written on. Many blame the Constitution for the lack of transformation within our society. It is a limited argument as it ignores the politics of the day, as well as the corruption and mismanagement that often lie at the heart of our inability to ensure that basic rights are protected.

When Zuma calls the Constitution “their” document, we all know what he is trying to do when he eschews ownership of it. In a world of cheap populism and easy answers, now more than ever we need to dispel what is reductionist and ahistorical. 

Former Constitutional Court Justice Albie Sachs is a charming storyteller. He talks of his debates on constitutionalism with his old friend, the late Kader Asmal, with humour and relish. Sachs never misses an opportunity to explain the ANC’s debates on the Bill of Rights and the Constitution. In these confusing times of noisy debate about constitutionalism, his recollections are worth pondering.

Sachs describes the pre-1990s rights debates within the ANC as difficult and often fierce. It is a powerful counter-narrative to some of the current criticisms of the constitution-making process. He tells of how reason prevailed and the party, under the astute and principled leadership of OR Tambo, supported the concept of a Bill of Rights when the moment arose. “OR” was set upon constitutionalising aspects of the struggle and, in Sachs’s words, “learning from every source” and “widening the embrace” of the ANC as a movement and its thinking. Tambo’s (and the ANC’s) strategic position on the Bill of Rights was that it would exist to “protect everyone”, black and white, rich and poor, and, in Sachs’s words, that the Constitution itself was needed as protection against arbitrariness by all leaders and indeed, to be used “against ourselves”. That was in 1988.

Sachs’s recollection is important for its wide reach into the past.

South Africa in 2021 is in a markedly different place compared with 1988. We have the right to speak, write what we like, and more importantly, the context within which we do so has changed. The choice we made to be a constitutional democracy was not an accident, nor was it one that went without any debate and argument within the ANC and other parts of society. The commitment to fundamental rights and against the arbitrary exercise of power was deliberate. That our transition to democracy was flawed cannot be disputed. That much still needs to be done to fundamentally change the lives of those who suffer all kinds of exclusion is without doubt. Yet, the Constitution remains a transformative and progressive instrument for bringing about such change.

Undergirding the values of the Constitution is therefore the next “struggle” we face. It pits those who would destroy the state for their own narrow gain directly against those who seek to build a country where those in power are accountable and responsive to the citizenry.

In their seminal book, How Democracies Die, Steven Levitsky and Daniel Ziblatt point out that democracies don’t die overnight. They die as a result of the “erosion of democratic norms and increased polarisation in society”. 

Equally, the attacks on our Constitution have not happened overnight. Levitsky and Ziblatt argue that “institutions and norms are critical to preserving democracy, but they can be worn down slowly and systematically”. They point us to four “warning signs”. 

The first is rejecting the rules of democracy, the second is discrediting one’s political “opponent”, the third is tolerating or encouraging violence. Finally, they seek to reduce civil rights. 

These “red flags” are all present in South Africa today as those in the ANC and EFF attack the judiciary and the Constitution. Recently we have seen unacceptable attacks on journalists by the EFF. They are not new but from the playbook of anti-democratic norms the EFF and too many within the governing ANC espouse. 

This week, 277 concerned South Africans met, virtually, to start a campaign to mobilise against those who would, as ANC stalwart and co-convenor of the meeting Cheryl Carolus said, “cock a snook at our hard-won democracy”. Carolus, as impassioned as always, spoke from the heart, as did fellow comrades, Reverend Frank Chikane and Barbara Masekela. In their voices was some pain, some distress at the betrayal of the promise. Many more added their voices, from business, civil society, academia, the health sector and religious groups, among others.

The meeting followed a powerful statement by the South African Council of Churches, calling Zuma’s defiance of the Constitution an attempt to destabilise South Africa. 

Our greatest gift to Madiba and the architects of our democracy is to do all we can to protect and defend the Constitution and deepen our understanding of the principles that underpin it. This will need to include short-term activism but also an understanding that building democracy and constitutionalism is a task for the long haul – the work of generations, as Barack Obama said in his final speech at the United Nations. 

We will need to confront the challenges we face on the shop floor, in offices and in the corridors of power, especially at a time when we need to repurpose our institutions. It means being brave about defending our democracy and the guardrails the Constitution has put in place. Any constitution is, after all, only as strong as the willingness of the powerful to adhere to it and the willingness of citizens to defend and protect it. 

We have reached another turning point in our country’s history. As Chikane said as he ended his emotive plea to the gathering this week: “Ke nako!” 

It is time for us to once more put our shoulder to the wheel and in doing so honour the previous generation who made for us “a pass at the infinite”.

Judith February is a lawyer and columnist. She was a speaker at the “Defend democracy” virtual gathering this week. The full statement released after the meeting can be found here.

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All Comments 8

  • Brilliant as always, Judith! SA is at the crossroads between good and evil. It is up to the media, judiciary and the decent population, by far the majority, to draw a line in the sand. The anc, to their eternal shame, are incapable and wholly complicit in the destruction of this country!

  • High time those “concerned South Africans” showed some resistance. Perhaps they’re still in time to slow or even stop our relentless slide into ignominy.

  • Well, Mz Ferial, perhaps you can contribute to the 1 party which proposes the Rule of Law, Economic Social Justice, Non-racialism, Evidence-based Decision-making, Construction of a Capable State, Independent Judiciary, ETC, & has created more employment than the state – a DA you refuse to support !!

    • Well, Roger, I assume that by now you have worked out that the author of this remarkable article is not Ms Ferial, but rather Ms February. And both of them have the right to support and critique whomsoever and whatsoever they wish. It’s their constitutional right…

  • Outstanding analysis. Solutions? The Mafia was brought down by attacking that organisation and its individual leaders. The ANC is allowing all the evil bad stuff. Surely the ANC political party is operating illegally, outside the Constitution and thus can be directly challenged using the law?

  • Very skilfully written article. Thank you. One can only hope that truth represented in such clear, respectful and readable ways can present some form of bulwark against the rise of incendiary populist binaries.

  • Great article. SA should now return to the rule of law and democracy. It’s been a year since we started being governed by the State of Disaster NCCC. We can’t fudge this issue. Deal with the coronavirus but let the Executive again be governed by Parliament. Nako ke mang!