The IEC and the Jacob Zuma election eligibility case appear to be rubbing almost everyone up the wrong way. Interestingly, a commentary in these pages decries some commentators in Daily Maverick and elsewhere as trying to “impugn the IEC’s motives as partisan and political”.

Also, that they are “fundamentally misinformed and poison public sentiment against the IEC”. The authors are entitled to their opinions. However, it is remiss not to appreciate that in the crucible of legal education, one fundamental principle stands tall: the recognition that every argument, every case, every interpretation, must be subjected to the relentless scrutiny of both its merits and its flaws.

This axiom, rooted in the essence of jurisprudence, embodies the indispensable journey toward growth and refinement. It is within this framework that the recent discourse surrounding the Electoral Court’s verdict and the IEC’s appeal to the Constitutional Court finds its resonance.

Amidst the chaos of recent electoral disputes in South Africa, there emerges a silver lining that beckons us to a deeper understanding of our constitutional fabric. Despite proudly touting our Constitution as the pinnacle of legal frameworks, many of us have failed to truly grasp its complexities or simplicities.

This lack of understanding extends even to some within our own government. It is a sobering reality that threatens the very essence of our democracy. It is disappointing when we view those commenting on the issues as making the IEC sacrificial lambs, just because we labour under the forgone conclusion or wrong impression that they are pushing a pro-Zuma narrative instead of acting as catalysts for a renewed dedication to understanding and upholding the principles that underpin our democracy.

With the ongoing debate surrounding section 47(1)(e), I will momentarily shift focus to another pressing issue that looms large in the discourse. This issue, intertwined with the fate of former president Jacob Zuma’s presidential ambitions, has garnered some attention from legal and political commentators alike.

Two terms vs two full terms

There is a view that should the Constitutional Court uphold the ruling of the Electoral Court, there is a potentially significant hurdle for Zuma: Section 88(2) of the Constitution. It is hoped that the IEC has also requested the Constitutional Court to give clarity of the meaning of section 88(2) to avoid a piecemeal approach in seeking clarity on matters directly or incidentally linked to its mandate to oversee and deliver free and fair elections.

Read more in Daily Maverick: Zuma all the way — 2024 elections, meet Stalingrad

Section 88(2) of the Constitution states that “no person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.”

A prominent political analyst has argued that Zuma “has served two terms as president. And that’s absolutely clear. And the Constitution allows only for two terms in total, in the lifetime of a person. So there is no way in which he can present himself as a presidential candidate.”

Another columnist elsewhere echoes the sentiments and in essence is pointing to the failure of the public — or rather ignorance — in not taking time to read and embrace a readily accessible Constitution, further stating that “perhaps South Africans should have considered this aspect of the Constitution before rallying behind the chant “Zuma must go”.

In essence, it has been argued by some that despite the Electoral Court’s ruling that Zuma can stand for election, the country should be assured that the operation of section 88(2) will disqualify him from becoming the president again. Is everything really that clear?

The word of caution is that the section 88(2) bar is not as simple as it appears. We must ask ourselves the following question: does section 88(2) refer to consecutive terms of office or cumulative terms of office? This is the question commentators are failing to appreciate and deal with. I hope that the IEC has also asked the apex court to clarify it.

It must be noted that term limits are common in presidential systems, with some variations from one country to the other. During the “third wave” of democratisation, in the 1970s-1990s, it became a serious concern to rein in presidency-for-life by individuals who attempted to circumvent term limit rules, with some using their popularity and others their party founder status.

Several African countries are evidence of the reality of personal rule and “presidents for life” through successive terms by those such as Yoweri Museveni in Uganda, Robert Mugabe in Zimbabwe, Félix Houphouet-Boigny in Côte d’Ivoire, and Habib Bourguiba in Tunisia.

Constitutional clarity vital

I firmly argue — despite the risk of being labelled a sympathiser of Zuma’s cause — that there exists a crucial imperative akin to the IEC’s stance on section 47(1)(e). This urgency lies in the necessity to clarify section 88(2) of the Constitution, thus pre-empting potential controversies that could shroud future elections in uncertainty.

Andorra, for example, had a clear provision stating in Article 78(1) of its constitution that “the Cap de Govern may not hold office for more than two consecutive complete terms.”

Armenia in Article 50 of its constitution states that “the same person may not be elected to the office of the President of the Republic for more than two consecutive terms.”

Peru had at least a clear requirement of a break after the initial presidency by stating in Artícle 112 that “the presidential mandate is for five years. There is no immediate re-election. Ex-president may run again following at least one constitutional term subject to the same conditions.”

Mexico on the other hand, had a provision that may be appealing to those arguing that Zuma may not run to be elected president after two terms in South Africa, stating in its constitution in Article 83 that “the President shall begin his term in office on December 1st and shall remain in charge for a term of six years. Any citizen, who has held the office of President of the Republic, through popular election or as interim, provisional or substitute, shall never, under any circumstance, hold such office again.”

Unfortunately, section 88(2) of the South African Constitution does not perpetually disqualify any person who served two terms as president from running for the presidency again, as does the constitution of Mexico.

A plausible argument against any position that section 88(2), properly interpreted, was crafted to include cumulative terms, is that if the drafters of the Constitution meant both consecutive and cumulative terms — or non-consecutive terms — they would have put that in the provisions of section 88(2).

Arguably any former president, be it Thabo Mbeki or Zuma, could potentially qualify for election as president of the country after a hiatus following two consecutive terms served, unless the courts rule otherwise.

Be that as it may, it is crucial to tread carefully to prevent the evolution of our Constitution into a draconian framework that indefinitely takes away the presidential ambitions of citizens of the Republic just because they once served as presidents. DM