This week, as I was doing research for my column, I found myself pondering our upcoming elections. I came across a quote on constitutional law lecturer Professor Pierre de Vos’s blog by retired Constitutional Court Justice Albie Sachs.

It states: “Universal adult suffrage on a common voters’ roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood.

“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.”

For the most part I agree with the quote, but I have difficulty with the end of it, where it says that even the disgraced all belong to the same democratic South Africa and that our destinies are intertwined. I say this because we were all shocked that disgraced former president Jacob Zuma has been granted the right to contest the elections after contravening his constitutional oath of office by being implicated in State Capture, being criminally charged for contempt of court, being imprisoned and allegedly being linked to inciting one of the most terrifying acts of unrest and violence the country has seen since our democracy’s dawn.

Read more in Daily Maverick: 2024 elections

Where in that quote is there room for someone like a disgraced former president to be able to contest the elections without him displaying any remorse for betraying his fellow citizens’ trust?

What are our laws’ responsibilities in safeguarding our “single interactive polity” against people who act against it? Zuma may have been granted eligibility to campaign for our votes through a legal technical loophole, but is it in our democracy’s best interests?

Perhaps the issue here is that the law is insufficiently capacitated to deal with issues such as this. And the reason we find ourselves at this juncture is probably because of our overreliance on the judiciary as the arm of the state that has been better functioning than the executive and legislature.

Some say this decision has shaken South Africans’ confidence in the judiciary’s ability to make sound decisions and opened it up to criticism.

I don’t necessarily agree with this, however, because I understand that litigation is not the elixir we would all like it to be simply because we have given up on the impartiality of the other two arms.

Recognising that the executive and legislature have become lame ducks still leaves a vacuum for bringing life to the “badge of dignity and of personhood” that Justice Sachs speaks of. So, rather than criticise the law for its limitations, our challenge is how to get all three arms to perform optimally.

It’s not an easy task but one not to be baulked at either. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.