The recent decision by the Independent Electoral Commission of South Africa (IEC) to uphold objections against former President Jacob Zuma’s presidential candidacy in the upcoming elections, alongside seven other candidates, continues to stir controversy.
Zuma’s disqualification, stemming from his 15-month prison sentence for contempt of court in 2021, has raised significant legal and constitutional questions.
The looming appeal at the Electoral Court by the uMkhonto weSizwe (MK) party underscores the complexity of this issue, particularly concerning Section 47 of the Constitution, which bars individuals convicted and sentenced to more than 12 months in jail, without the option of a fine, from holding public office for a period of five years.
Section 47 (1)(e) of the Constitution reads as follows:
“(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except…
“(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.”
As debates intensify, crucial inquiries emerge regarding the application of Section 47 and its implications on constitutional rights. The interpretation and application of Section 47 of the Constitution demands careful scrutiny in light of its far-reaching consequences.
Is the provision too sweeping, unyielding, and disproportionate in its current form, failing to account for the restoration of fundamental rights and freedoms essential for participation in public office?
Moreover, the question arises: does a presidential pardon or presidential special remission of sentence pursuant to section 84(2)(j) of the South African Constitution automatically reinstate all constitutional privileges, including eligibility for presidential candidacy during national elections?
These pressing concerns underscore the need for comprehensive deliberation and potential reform regarding Section 47, emphasising the imperative of balancing the principles of justice, accountability and democratic participation within South Africa’s legal framework.
For the purpose of this opinion, I will focus primarily on two key issues or observations.
First, the disqualification outlined in this constitutional provision has never before been actively contested with the aim of regaining eligibility for public office, particularly in the context of a presidential candidacy, and against the existence of a presidential pardon or remission of sentence.
Second, while general legislation has provided avenues for the restoration of civil rights and liberties through the expungement of criminal records, the specific issue of political disqualification warrants closer examination.
While the MK party appeal case does not revolve around impeachment of its presidential candidate, nonetheless, examining impeachment instances and the resulting disqualification from the presidency may offer insights into how the South African Constitution could evolve or be amended in the future.
Impeachment of Lithuanian president
An illustrative example is the European Court of Human Rights (ECHR) in April 2022, when it made a significant ruling that sheds light on human rights considerations following the impeachment of public officials. This case specifically addressed the aftermath of the impeachment of Lithuanian president Rolandas Paksas.
The Court’s advisory opinion evaluated the fairness of barring individuals from running for office after being removed from power due to impeachment (Request No. P16-2020-002, Eur. Ct. H.R. Apr. 8, 2022, Grand Chamber).
This issue is particularly relevant in discussions about the constitutionality and fairness of disqualifying individuals from seeking the presidency, a topic that resonates strongly with upcoming elections, such as the 2024 race in which there is a contestation of the disqualification to run for presidential office for figures like former president Zuma.
Paksas wished to stand as a candidate in the presidential election called for 13 June 2004, and the Central Electoral Committee (CEC) found that there was nothing to prevent him from standing.
However, the Lithuanian Presidential Elections Act was amended by inserting the following provision: “A person who has been removed from parliamentary or other office by the Seimas in impeachment proceedings may not be elected President of the Republic if less than five years have elapsed since his removal from office.” Consequent to this amendment the CEC refused to register him as a presidential candidate.
It is worth noting that Paksas, who once served as Prime Minister of Lithuania under president Valdas Adamkus, formed his own political party and even won the 2002 election, defeating Adamkus. His subsequent impeachment and disqualification from seeking office again raised important questions about the limits of political participation and human rights protections.
Paksas’ journey from political exclusion to a landmark legal battle at the ECHR has spotlighted fundamental questions of democratic governance and individual rights. In a pivotal ruling, the ECtHR condemned the disqualification from parliamentary candidacy imposed on Paksas, deeming it disproportionate.
The ECHR emphasised the need of assessing such laws within the context of a nation’s political evolution. Crucially, the court underscored that restricting a person’s right to stand for office necessitates less stringent justification compared to limiting their right to vote [Para 96].
While recognising the legitimacy of Lithuania’s intent in implementing such restrictions, the ECHR was steadfast in its stance that permanent disqualification based on a categorical rule is an excessive response, discordant with the essence of preserving democratic principles.
With the majority of the Grand Chamber concurring, albeit with dissenting voices, this ruling stated that the permanent disqualification rule was inconsistent with the European Convention [Para 113].
Perhaps a lesson here for our courts and democracy is that entrenched norms must be challenged as a sign of maturity and evolution of our democratic dispensation. Also, that blanket bans on candidacy may undermine the essence of representative governance.
With the MK Party appeal against the disqualification of former president Zuma, the Electoral Court stands poised to deliver a decision that could shape the course of its history. This forthcoming ruling presents an opportunity for the evolution, maturity, and adaptability of our constitutional jurisprudence, ultimately benefitting the integrity of the Constitution itself.
Pivotal moment
In a moment like this, the court must rise above mere adherence to the literal interpretation of Section 47 of the Constitution. Instead, it should embrace the complexity of the issues at hand and demonstrate a keen understanding of the nuanced societal dynamics at play.
For instance, the Electoral Court must pronounce itself on the legal consequence of the remission of Zuma’s sentence and whether it must be considered in determining if ultimately he has been convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine.
Put differently, whether a remission of sentence has the effect of reducing or expunging a prisoner’s sentence. If the Electoral Court answers the question in the positive, then Zuma should for all intents and purposes qualify for presidential candidacy as he would have served imprisonment of less than 12 months as required by section 47 of the Constitution. The section 47 disqualification in such circumstances would not operate prospectively.
This is a pivotal moment, a test for our era. It calls for a judicious blend of legal interpretation and contextual understanding — a decision that reflects not only the letter of the law but also its spirit and intent.
The outcome of this Electoral Court appeal will resonate far beyond the courtroom, influencing the trajectory of our democracy and the foundation upon which it peacefully stands. As the Electoral Court deliberates, it must remain steadfast in its commitment to justice, fairness, and the preservation of democratic principles. DM
That Ramaphosa pardoned Zuma was already a failed test for our democracy. There is very little we can expect from the ANC when it comes to accountability.
True. Ramaphosa May have thought if he makes it go away, JZ will go away. And his supporters will quite down. But we are learning that it’s not great idea to extend special treatment and bow to threats from people who have no intention of being civil
There is a difference between a pardon and a remission.
“There is a difference between a pardon and a remission.”
Yes, you are correct, apologies for that. The impact though is no different, and it’s just another day of the ANC defending the indefensible, and shielding it’s members from accountability.
The impact between a pardon and a remission of sentence is huge! Zuma may not return to the executive for 5 years. Finished and klaar.
The fact is that Zuma denied the very Constitution that he had publicly sworn before God and the nation to uphold. He was guilty of treason, no more. no less, and should have been punished accordingly.
I get that the Jacob Zuma issue is a sensitive one in South Africa in the build-up to the elections. Despite this, I disagree with what I read to be the implied point in this article. Namely, that Jacob Zuma should be allowed to run for president despite receiving a 15 month sentence. One of the reasons that I do not agree with the article is the reason for the sentence. Jacob Zuma was sentenced for refusing to appear before the Constitutional Court. In other words, for being a Constitutional delinquent. This is not the first time such a finding was made. After showing a complete lack of respect for one of the 3 pillars of our democracy, how could anyone believe that such a person should be given a chance to run for president or any political position?
South Africa, a country that insists on fighting for its right to destroy itself. We are like the “right to die” movement for countries.
It is a slippery slope when clear laws are being asked to be applied with wiggle-room. As usual, will different rules apply to Zuma as applies to me?
The law says ‘sentenced’, not ‘served’ – JZ783 was SENTENCED to a term of more than 12 months – regardless of whether he received (an extremely dodgy) medical parole, or a remission of sentence after the fact, he was sentenced to more than 12 months, and thus should not be allowed to stand.
I’m also not certain, but the way I understand our rules and laws, he has already served two terms as president (the maximum allowed by our constitution), and cannot be president again, simply because he moved to another party (while maintaining his ANC membership, nogal)
Also, further to point one, the fact that he received medical parole because he was ‘dying’ should also preclude him from being a member of parliament (or president) as clearly he is frail and at death’s door – how can he be expected to fulfil such a demanding and stressful job role?
They say Hell is the impossibility of reason.
As much as I support standing firm on the principle of the rule of law, I do get the sense that it would be far better for the country if JZ were to stand and fail on his own merits, than for him to be painted as some kind of martyr.
Even better if he were to qualify for a seat as an MP, and then fail to take it up, and in the process disappointing everyone who had supported him — which would be my baseline expectation if his candidacy was somehow allowed to proceed.
Absolutely agree on the not martyring JZ. Sometimes I think that the only point of solace. That maybe even the powers that be are banking on that.
But I also think it’s a dangerous game to play. JZ people seem to have one end-game on their sights. One that seems impossible. A firm hand is needed. On the other hand, amending the law to appease JZ will have long lasting detriment to the elections, society and democracy. supporters may claim ‘he’s never guilty, always a victim, we’ve finally proven it!’
Yes the law like anything must be updated. On this occasion, refusing JZ return to parliament based on his custodial sentence, association with corruption etc, should only strengthen not weaken the law against unsuitable candidates.
The sad side of this story is that we seem to need laws to protect voters against themselves i.e. if the law don’t prohibit it, we will freely elect known criminals to govern us.
The law is clear. Anyone “convicted of an offence and sentenced to more than 12 months …. “ is ineligible to be a member of parliament. That the time he served was shortened ( as it happens on false pretences!!) , does not in any way change the sentence. Full stop.
The bulk of this article centres around holding office following impeachment – which I view as a convenient distraction. The crux is a convicted criminal may not hold office for 5 years. Zuma was given remission of sentence. As far as I am aware, he was not pardoned and his criminal record was not expunged . Unless Ramaphosa proclaims otherwise, Zuma is not eligible to hold public office – and he should never !!
1. The key issue here is the gravity of the penalised conduct, hence the sentence of more than 12 months of imprisonment without an option of a fine and without the suspension of the whole/part of it.
2. The example used by our author is not relevant to our case here, because our IEC applied the law that was already in existence. They did not insert it after the fact.
While the professor argues for the ‘evolution’ of the law with respect to ‘fundamental’ rights such as being ‘eligible’ not just to be elected to office , but more significantly the ‘highest office’ in any democracy .. he fails to question how certain individuals with ‘male fide’ intentions or motives (the other evolution?) also abuse the ‘law’ to protect/absolve themselves from the very serious ‘responsibilities’ of running for the high/highest office. Our local experience of this aspect has taken the form of what has become popularly known as ‘stalingrad’ strategies. ‘Rights’ without adequate or strong measures of ‘responsibilities’ … makes an ass of the law … the saying goes . Surely where a competent court in a democracy has found an individual ‘guilty’ of a misdemeanor/misconduct, it is equally incumbent on such individual to ‘pay their dues’ to society ? I say this as a ‘lay person’ with no legal expertise.