Prof. Sipho Seepe
The decision by the Electoral Court to reinstate former President Jacob Zuma caught many by surprise. Both friends and foes have become accustomed to the former president losing almost every case in the South African courts. In the court of public opinion, Zuma is damaged goods. Indeed, no individual has suffered so much unrelenting vilification as he has. Regarding this, Professor Brian Williams writes (The assault on Zuma’s dignity, Cape Argus, February 5 2021).
"The sustained levels of violence, at a cultural and structural as well as institutional level, that continue to assault his human dignity is staggering. The former President of South Africa has faced public mockery, dehumanisation, and being subjected to public ridicule by an assortment of characters, some posing as experts."
The impugned decision by the Constitutional Court to sentence Zuma to prison without the benefit of a trial is one of many instances in which his rights were violated with gay abandon. In doing so, the Constitutional Court has re-introduced detention without trial in our juridical imagination. It needs to be stated that detention without trial is one of the most repressive measures that apartheid unleashed on political activists. This is the most regressive step taken by the Constitutional Court. A quote attributed to the former American President Thomas Jefferson, seems apt. "When injustice becomes law, resistance becomes duty."
In arriving at its decision to reinstate Zuma, the Electoral Court chose to steer away from looking into this aspect of the impugned judgment of the Constitutional Court. Had it done so, it would have indicated that section 47 adds a proviso that, “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.”
Williams could not have captured this atrocious and vengeful act by the highest court better. In ConCourt ruling on Jacob Zuma cuts into the arteries of democracy (Cape Argus, July 9, 2021), Williams argues.
“How can Zuma, an accused person found guilty of a ‘contempt of court offence’ have less rights than murderers and child molesters? The court, in its majority ruling, stated self-evidently that ‘this judgment indeed cannot be appealed’ (para 79) …. How can there be such raucous public celebration of this antagonistic contradiction which lacks a crucial justice and peace balance?... this ruling cuts into the arteries of our constitutional democracy.”
In the fullness of time, and with the political heat having subsided, legal scholars would come to a determination that the re-introduction of the obnoxious detention without trial is an abomination of the spirit of the Constitution.
The Electoral Court sought guidance from the Constitution’s Bill of Rights which is correctly defined as “a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom.” The constitution is crystal clear in its expectations that the Bill of Rights “applies to all law, and binds the legislature, the executive, the. judiciary and all organs of state.”
Pertinent to the Zuma matter is the provision that “every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and to stand for public office and, if elected, to hold office.” In terms of hierarchy, the Bill of Rights takes precedence over other sections in the Constitution. Central to this provision is ensuring that the will of the people is not compromised.
In a sense, the Bill of Rights makes the debates about what constitutes remission moot. In dealing with remission, the Electoral Court held the view that President Cyril Ramaphosa’s decision to remit the sentences of the prisoners was consistent with the provision of the Constitution. Section 84 (2)j entrusts the president with the powers of “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.
The Constitution is defined as both backward-looking and forward-looking. It is backward-looking in the sense of being historically self-conscious of the repulsive past. It is about ensuring that the past does not weigh heavily on the present. It is about making an irrevocable break with unsavoury practices such as detention without trial. It is forward-looking in the sense of its commitment to reimagining a futuristically different South Africa.
In a sense, the Bill of Rights gives expression to the aspirations contained in the Freedom Charter that “no government can justly claim authority unless it is based on the will of all the people; that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality… that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief.”
As it is in many Western democracies, money plays an important role in South Africa’s democratic experiment. Arguably it always has. Free expression of the will of the people risks being undermined by foreign interests and the role of big capital in politics. Recent developments suggest that interest groups with deep pockets have hijacked the country’s democracy. Nothing exemplifies this more than the falling of the rand after new polls indicated that the MK Party is eroding the ANC’s support base. One day the mantra – “the people shall govern” will ring hollow.
In his recent must-read article, Big Capital Power Play (April 10, 2024), Siyabonga Hadebe argues persuasively that the demonisation of Zuma was part and parcel of big capital’s sowing divisions within the ANC. Hadebe explains. “Big Capital wielded its power (through the judiciary) to ensure that Zuma became South Africa’s foremost political scarecrow (or the Zuma gevaar). With all things being equal, everyone was excited and more than convinced that Zuma was indeed the villain he was portrayed to be. What was difficult to explain is that South African politics continued to be turbulent.”
Hadebe continues. “Big Capital played a significant role in determining the new leadership of the ANC by pouring billions into its 2017 conference. However, Zuma's departure did not result in harmony; instead, it led to more ructions that aligned with Big Capital’s strategy. Politically, the party continues to act in a contrarian manner, hastening its demise.”
The posture taken by organisations such as Freedom Under Law, which has suddenly come out of the woodwork, comes as no surprise. These self-appointed custodians of democracy, including so-called foundations, have arrogated to themselves the right to determine the future of South African democracy.
Too much blood had been spilled in the name of the struggle for democracy. Hundreds of thousands paid the ultimate price for South Africa’s post-1994 to see the light of day. For the sake of future generations, we all have the responsibility to protect and consolidate the gains of our democracy. If we don’t, it won’t be long before democracy is replaced by tyranny.
The IEC’s confirmation that it has approached the Constitutional Court to review the decision of the Electoral Court is unfortunate. First, this raises a conflict of interest. After all, the challenge faced by the IEC derives from the decision by the Constitutional Court when it jailed the former president without the benefit of a trial.
Second, with the kind of vitriolic language that was used by the majority judgment, what chances exist that the justices of the constitutional court will approach the review with an open mind? Third, the review would invariably call into question the effectiveness of constitutional prerogative as enshrined in section 84 (2) of the constitution. In this unfolding drama, it will not only be the rights of Zuma that are likely to be violated, but the right of many South Africans to choose their public representatives. For now, Zuma is fair game!
*Prof. Seepe is an independent political analyst
**The views expressed do not necessarily reflect the views of Independent Media or IOL