JUDITH FEBRUARY: Now’s the time for Ramaphosa to defend our constitutional order
Any constitution is only as strong as the ability and willingness of those in power to adhere to it and then the willingness of citizens to defend it.
The rule of law remains axiomatic to any functioning constitutional democracy.
One of the most defining moments of Nelson Mandela's presidency was the moment he took the stand in the case of the President of the RSA and Others v South African Rugby Football Union & Others in 1999.
In 1998 President Mandela appointed a commission to investigate allegations of racism, nepotism and corruption against Sarfu. Sarfu approached the court in order to stop the work of the commission. Judge William de Villiers saw fit to subpoena the president himself to give evidence as to why he ordered the probe.
This sparked much debate about whether the president should have to defend his every decision in court. Mandela chose to do so in this case and was subjected to a lengthy cross-examination by Sarfu's legal counsel, Advocate Maritz. Justice De Villiers eventually ruled in favour of Sarfu, setting aside the government's inquiry and called Mandela 'an unsatisfactory witness'.
This is an important bit of legal history especially in the year when we mark the 25th anniversary of the adoption of the final Constitution.
That Mandela was prepared to place himself in such a position of scrutiny before a court was a singular act of leadership, possibly the most important of his presidency. It not only showed his commitment to the rule of law and the Constitution, but was also a visible reminder that no one, not even the president of the Republic, was above the law or above being held to account for his actions.
Mandela recognised that the alternative to a constitutional democracy was rule by the whim of the powerful, which was anathema to the struggle for justice. His was an action aimed at embedding a culture of constitutionalism during a period of intense political and social change.
Even though the final Constitution was the product of negotiations and public participation on a scale South Africa had not experienced before, Mandela knew only too well that a Constitution is only really as strong as the ability or inclination of those in power to submit to it.
This bit of history is particularly apposite this week when former President Jacob Zuma declared that he would not adhere to the ConCourt ruling stating that he is compelled to appear before the Zondo Commission of Inquiry on state capture. He alleges the commission was designed purely to ensure that he is the sad scapegoat. Moreover, and in what is perhaps more sinister, he accuses the ConCourt of political bias. It’s all a conspiracy and the courts are acting in concert with dark forces to ensure only one thing: the demise of Zuma.
In this narrative, Zuma becomes first victim and then martyr. We have been here before with Zuma - remember his rape trial? Corrupt to the very core, Zuma is predictably using every obvious trick in the populist’s playbook to stay out of prison.
The litmus test for the Zondo Commission and, by implication, for our constitutional order, is obvious, should Zuma fail to appear before the commission on 15 February.
Aiding and abetting Zuma is ANC secretary-general, Ace Magashule, who similarly sees no wrong in Zuma flouting the Constitution. There is truly no honour amongst thieves.
Joining the unseemly fray is the King of Spectacle, EFF leader Julius Malema. Doubtless Malema sees some cheap political gain out of the declared cup of tea Zuma has invited him to at Nkandla. Malema’s actions should come as no surprise. He has always been without principle and himself faces serious allegations of corruption in relation to the VBS matter. But in a country where shame is a rare commodity and impunity reigns, this remains a mere detail.
As for Zuma, the marks of his constitutional vandalism are writ-large in every aspect of South African public life. There is an overwhelming body of evidence in the public domain which details the looting of state coffers, the wrecking of our public institutions by his cronies and the careless disregard for the rule of law.
During her investigations into the development of his Nkandla home, Zuma consistently questioned then Public Protector Thuli Madonsela’s recommendations in relation to Nkandla and her authority to even make such recommendations. By his very actions he consistently undermined a constitutionally mandated body.
One therefore must wonder what Mandela would have made of the current ANC leadership's attacks on the judiciary and the Constitution itself? Sadly, however, these anti-constitutional utterances from some within the ANC are not new. This is also worth recalling this week, if only to indicate the degradation of the ANC itself and the hollow shell it has become.
Let us cast our minds back to 2015 when the High Court in Pretoria ruled that our government’s failure to arrest Sudanese president Omar Al-Bashir was unconstitutional. By the time the judgment was handed down, Al-Bashir had already left the country, yet it was important to establish the principle that the state is not above the constitution.
It is worth remembering that then secretary-general Gwede Mantashe launched a scathing attack on the courts, citing them as 'problematic' and further declared that there were 'some sections' of the court system driven by a desire to 'create chaos for governance' in South Africa. His deputy Jessie Duarte followed suit with similar criticisms.
Going even further back to 2012, the ANC’s Ngoako Ramathlodi launched a scathing attack on the judiciary while delivering a lecture in honour of ANC president AB Xuma. Ramathlodi accused the judiciary of seeking to undermine the executive.
Let us make no mistake about the political moment we are in and the stark choices we face.
It is now incumbent on the ANC as a political party to hold Magashule, Zuma and those who make anti-constitutional utterances, to account in the strongest possible way.
It is also incumbent on President Ramaphosa to make clear that he himself, as the head of this constitutional state, believes that no-one is above the law. Now is not the time for Ramaphosa to demur or kick such a fundamental issue to touch in his usual mild-mannered way. It is the time for him to defend our constitutional order.
If he chooses to remain silent, or to sugar-coat his words to avoid bleeding support within the ANC, he will have acquiesced to the dangerous populists and charlatans within his party. Ramaphosa, as one of the architects of our Constitution, should know better than most that what is at stake is the very essence of our democracy and the pillars of accountability on which it is built.
The Zuma years saw the hollowing out of our democratic institutions which are now being repurposed, with great difficulty. As South Africa fights the economic and social fall-out of the COVID-19 pandemic, it is clear that it can only do so within a framework the Constitution provides.
In the unanimous judgment of the Constitutional Court in the Nkandla matter, Chief Justice Mogoeng Mogoeng spoke clearly about the kind of state the Constitution envisaged.
He starts by outlining how South Africa adopted “accountability, the rule of law, and the supremacy of the Constitution”. He goes on to state how this applies to public representatives, the President in particular, when he says, ‘“For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”
The words of the Chief Justice stand as a stark reminder of the bulwark the judiciary formed against our constitutional order being completely destroyed by Zuma and his corrupt cronies.
This is a moment, not only for Ramaphosa and the feckless ANC he leads, but also for all of us as citizens to demand that the reckless and unaccountable, even - perhaps especially - a former head of state, be held to account.
Anything less would be a betrayal of Madiba and the founding fathers and mothers of our constitutional democracy. To be sure, there have been several acts of betrayal, but let us not underestimate the gravity of this moment. We cannot avert our gaze. We need, as Teju Cole has said elsewhere, “to (give) things their right names” and speaking truth to power.
So plainly put, if Zuma defies the Zondo Commission and the ConCourt, he will tear down the edifice of this democracy with his act of impunity. Should the ANC and President Ramaphosa be silent, then their silence will have made them complicit in the final betrayal of the people.
And then will we, the people, stand firm to protect and defend the Constitution and march in its defence should that moment arise? That is perhaps the rather more salient question than what the ANC or Ramaphosa will do.
Judith February is a lawyer, governance specialist and Visiting Fellow at the Wits School of Governance. She is the author of 'Turning and turning: exploring the complexities of South Africa’s democracy'. Follow her on Twitter: @judith_february