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The rule of law versus the rule of war

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Kresen Moodley is a labour law practitioner, and a civil and commercial mediator and arbitrator and trainer, who in his personal capacity writes in the tradition of Unity Movement/Apdusa.

The rule of law is only as good as the capacity of the people to enforce it. The SAPS’s unilateral decision not to carry out the order for Zuma’s arrest did more to undermine the independence of the judiciary and the rule of law than Zuma could ever hope to do.

First published in the Daily Maverick 168 weekly newspaper.

What Leon  Trotsky called the “turn of the fascists” indeed arrived outside that dull inglorious monument to state capture, corruption and greed, Inkaaaaaandlaaaa, over the last weekend. 

This is what 27 years of democratic freedom in a neo liberal order has brought us to. The nation looked on helplessly as we were all held hostage and forced to watch as our hard won democratic freedoms was trampled underfoot by the incessant thudding of toyi- toying hoodlums. 

The Nkandla moment revealed with crystal clarity that we are facing the very real threat of a fascist counter revolution. It was a dress rehearsal for what our very near future could look like for those who harboured any doubts. This historic moment that unfolded at Nkandla was a logical nodal point, ‘a coming of age’ for the fascist movement following its messy birth at Polokwane. 

This was the first time since Polokwane that the armed might and power of the sovereign state came into direct and open collision with the unlawful private paramilitary of fascism that openly declared a war on the state and nation. Collectively this fascist private army created a zone of parallel or dual power as they faced off a meek and circumspect SAPS. They have come a long way from the initial kind of barbarism they displayed at Polokwane and before which was both tolerated and encouraged in the ANC for as long as it served factional interests. 

At the very heart of the conflict tearing the ANC and our country apart is the struggle between a constitutional social democratic order and fascism. The difference between Zuma’s “RET Forces” faction and the CR17 faction is not corruption per say because we all know that they are all corrupt. The difference is that Zuma’s thieving is corruption of a “special type” – that of the petty bourgeois fascist whose real intention is not just self-enrichment but totalitarian dictatorship and a complete subversion of the constitutional democratic order. 

The Nkandla moment is indicative of the development and maturation of this ongoing struggle between fascism and democracy. It is importantly also an immediate reaction to the recent gains that Ramaphosa has made against the forces of state capture.  

The violent terror of the Nkandla moment is a continuation of the terror unleashed in the trucking, construction and taxi industries, the recent xenophobic violence in Durban and the killing and intimidation of witnesses in the crimes of State Capture and the internecine violence in the ANC. The only difference now is that the acts of terror were performed not under the cover of darkness but in the light of day and in front of international TV audiences. 

Zuma has effectively shifted the terrain of struggle to the streets and branches of the ANC far away from the courts, boardrooms and parliament where Ramaphosa has gained the most ground against him. We have entered a new phase of conflict, that of open street warfare. 

This is not a Marikana. There is a qualitative difference between the legitimate struggle of oppressed and exploited workers fighting for a decent life and fascist thugs hellbent on wreaking havoc and mayhem. Only the most naive optimist will believe that the violence will disappear or that the fascists will go quietly into the night. It was this false logic and denialism of the very real dimensions of the fascist threat that saw Mussolini, and Hitler after him, coming to power with little or no resistance. 

The rule of law is only as good as the capacity of the people to enforce it. The SAPS’s unilateral decision not to carry out the order for Zuma’s arrest did more to undermine the independence of the  judiciary and the rule of law than Zuma could ever hope to do. 

The truth is that for almost 48 hours the RET Forces unilaterally suspended our Constitution, not through the democratic process of parliament, but through the promise of street violence and bloodshed. The unlawful gathering was not just in blatant arrogant defiance of strict lockdown regulations or to subvert the order for Zuma’s arrest. This was the immediate trigger and the short game. But this went much further. The long game is nothing less than a belligerent attack and challenge to the sovereign power of the state and the unapologetic subversion of the democratic constitutional order and for the forceful installation of a fascist dictatorship. 

The heavily armed unruly mobs of the age-defying MKMVA, the pot-bellied, sluggish Amabutho and an assortment of gangsters and thugs together with the unconscious lumpen elements formed the heavy ballast of Zuma’s defence against what he views as the “tyranny” of the rule of law and the “dictatorship” of the judiciary. They are a paramilitary pastiche of Hitler’s “Brown Shirts” and Mussolini’s “Black Shirts” and their street gangster and protection racket predecessors. 

As usual when the Zuma and the RET Forces are cornered and need to assert their power they rely on and reveal their backward reactionary tendencies. Zuma played the eternal victim of a conspiracy theory, the demagogues and sycophants spun their yarns and worked the people into an ignorant frenzy, the “100% Zulu Boy” on a war footing raised his outmoded spear in a display of defiant tribal chauvinism and retreated to his tribal fortress, the unruly mobs and private armies were unleashed on the public in defiance of all civilised norms and democratic freedoms.

This is Zuma’s and RET Forces war against Modernity, their rebellion against Reason. It was a public parade and spectacle of the most uncouth, barbaric and backward aspects of our society from a bygone age of ignorance. Untouched by our weak superficial democratic progressive culture, this reactionary strata remains with us and will do so for a very long time to come. 

This usually exists in the recesses, but now coagulates to the surface from the deep rotting muck of the backwaters of capitalist society, by the heat generated from the call to counter revolution. It is this muck that nourishes the soul of the petty bourgeois RET Forces. These enraged rampaging chauvinistic Africanist rent seeking tenderpreneurs form the “battering ram” of fascism. 

The ultimate historic function of this battering ram is to annihilate all democratic ideas and organisations and to permanently dismember and “atomise” the mass of the working class to prevent any resistance to totalitarian oppression and exploitation.

So clear is the revelation of the Nkandla moment that there can no longer be any doubt about what the paramount and immediate historic choices facing the Nation are: Fascism and barbarism or Democracy and freedom; The Rule of War or the Rule of Law! The difference is literally the difference between life and death. DM

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.

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