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All (including Jacob Zuma) are equal before the law: The judiciary has strengthened our constitutional democracy

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Andrew Ihsaan Gasnolar was raised by his determined maternal family. He is an admitted attorney (formerly of the corporate type), with exposure in the public sector, management consulting, advisory and private sector. The focus of his work is about enabling equity, justice and leveraging public policy effectively. He had a stint in the South African party-political environment and found the experience a deeply educational one.

We do not celebrate the incarceration of the country’s former president for contempt of court, but South Africa at this moment has been tested – stress-tested by those with influence and power – and we have come through with the rule of law holding sway.

Jacob Gedleyihlekisa Zuma, who served as South Africa’s president from 9 May 2009 until his resignation on 14 February 2018 – and someone who was empowered with the full executive authority by way of the Constitution – was committed to the Estcourt Correctional Centre in KwaZulu-Natal during the early hours of Thursday morning.  

The late-night antics leading up to Zuma’s eventual compliance with the Constitutional Court order should not surprise South Africans given Zuma’s preference, while in office, to shuffle his Cabinet late in the evening.  

The entire drama at Nkandla could have been avoided if Zuma had simply handed himself over this past weekend. Instead, we were given political posturing, incendiary rhetoric, frenzied court applications and threats of anarchy.  

Similarly, the police should have proactively acted by making arrangements during the first half of this past week to secure Zuma in accordance with the court order, rather than wait until the very last minute on Wednesday night.  

We do not celebrate the incarceration of the country’s former president for contempt of court, but South Africa at this moment has been tested – stress-tested by those with influence and power – and we have come through with the rule of law holding firm.  

Zuma has not been sentenced to 15 months’ imprisonment arbitrarily, but with a deep commitment by our judicial system to not treat him differently, but rather to consider the unique circumstances of the matter, the threat to our legal system and the fabric that holds our country together.  

The inflammatory rhetoric and dangerous conduct of some over the past weekend in Nkandla did not see our rule of law bend to the whims of those with influence and power. 

The manufactured crisis was not organic, but rather staged by those seeking to exert political influence on the rule of law, and they failed. Zuma had no option but to hand himself over, and the police had no option but to comply with the court order. Our legal system and the fabric of our constitutional democracy held firm – a reminder to all citizens in this country that we are all equal before the law.  

Nelson Rolihlahla Mandela, South Africa’s first democratically elected president, understood the principle of constitutionalism all too well. On the inauguration of our apex court in February 1995, Mandela reflected on the role of our Constitutional Court in protecting our democracy and its people. It was a lesson that those around Zuma should take to heart:

“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.”

The anxiety and uncertainty created by the activities and mobilisation of those around Zuma was not incidental to this moment, but rather part of an intentional manoeuvre to manufacture a crisis in the hope that this would somehow result in justice being deferred or ignored to protect one individual. 

Constitutionalism is alive and well in South Africa, and those foundations that were laid during the process that saw the final adoption of our Constitution ensured that regardless of who you may be, or think you are, you shall be treated fairly and equally without any hesitation, fear or deviation.  

The stress test that South Africa has just endured should not be discounted as we were pushed to the brink, not in order to serve the people of this country or to improve the livelihoods of our people and their communities, but rather to simply protect one man from being accountable. A clear and resounding message has been sent to all politicians – you cannot avoid accounting to the people of this country; you will not be able to avoid responsibility.  

South Africa has been able to hold firm to its fundamental constitutional principles in the face of enormous agitation, and in the coming weeks, we will have to endure far more shenanigans, manufactured outrage and inflammatory rhetoric, and in these moments, we must continue to hold firm.  

Our constitutional democracy was, by its very design, adopted in the interest of making a distinct break from an illegitimate, racist and oppressive regime, and that framework has always enabled the people to be heard – as Madiba said, “to be heard in an organized, articulate, meaningful and principled manner”.  

South Africa does not find itself under a dictatorship of the judiciary, as suggested by Zuma’s faction, but rather we are witnessing our judicial system acting with integrity to guard against direct assaults and insidious corrosive conduct.  

The resilience of our democracy has been reaffirmed not only by the committal to prison of South Africa’s former president for contempt of court and his consistent refusal to be held accountable, but also by the affirmation that everyone is equal before the law. 

The inflammatory rhetoric and manoeuvring must continue to be rejected in the strongest terms, and the police must act urgently, appropriately and fairly when necessary. 

On 12 July, our Constitutional Court will consider Zuma’s application to have his 15-month prison sentence rescinded – a sentence handed down by the very same court. This is not the end of Zuma’s legal machinations. We will undoubtedly see more of this in his ongoing corruption trial which is due to resume on 19 July.  

The inflammatory rhetoric over the past weekend in Nkandla and leading up to the committal of Zuma to the Estcourt Correctional Centre will not end, but rather it may escalate over the coming weeks.  

South Africa, its citizens and the custodians of our rule of law will need to continue their collective efforts to secure our constitutional foundations, and to ensure that our constitutional democracy continues to serve the people, and not any one person’s narrow self-interest.  

This is how constitutionalism in South Africa works, and how South Africa’s constitutional democracy must always function. DM

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  • Well actually, I would only agree with your declaration if Zuma stands trial and is imprisoned for all the other 800 plus charges against him. What is happening about that real on the ground harm he committed against our nation ?

  • It may be that Gasnolar and associates do not celebrate the incarceration of the country’s former president, but it is evident that a large chunk of the population do.

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