JUDITH FEBRUARY: There's no longer anywhere for Jacob Zuma to hide
When President Nelson Mandela inaugurated the first Constitutional Court he said, “Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.”
How right Madiba was.
As Acting Chief Justice (ACJ) Khampepe delivered her judgment in former President Jacob Zuma’s contempt of court case on Tuesday, she was drawing a line in the sand.
Khampepe ACJ, on behalf of the majority of the ConCourt, did not mince her words in an elegantly penned judgment. She went to great lengths to express judicial displeasure at the egregious attempts by Zuma to undermine the authority of the highest court in the land.
She said, ‘It cannot be gainsaid that the longer that Mr Zuma’s recalcitrance is allowed to sit in the light, and heat, of day, so the threat faced by the rule of law and the administration of justice, curdles.” She went on to say that “his contempt and contumacy is rebukeable in the strongest sense”.
It was a powerful moment in our post-apartheid judicial history. A former president will now be imprisoned.
Predictably, the judgment was met with the characteristic noise and clamour that we now expect when anything involving Zuma happens. Immediately the Zuma spin factory got to work. Zuma’s supporters labelled the judgment ‘emotional’. It was a predictable (and insidious) stereotype mobilised against a female judge.
The same motley crew of Zuma supporters also exhorted us to ignore the majority judgment and focus instead on the minority judgment of Justices Theron and Jafta. The problem, of course, is that the minority judgment did not exonerate Zuma of contempt. The key difference lay in the interpretation of a coercive versus a punitive order and the ConCourt’s right to order unsuspended committal as the majority had decided.
Minority judgments are commonplace in any matter and are part and parcel of the legal debates a court like the ConCourt should have. One can debate whether Justices Theron and Jafta were misguided or, indeed, whether the majority of the ConCourt was. No doubt this judgment will be studied for decades to come by law students in South Africa and elsewhere.
That does not, however, change the fundamental fact that it is the majority judgment which holds sway. No amount of warped spin doctoring can change that.
So now that the ConCourt has spoken, Zuma will need to present himself to a police station. If he does not, the ConCourt order left no space for ambiguity as to what should happen next. Khampepe ACJ ordered, “In the event that Mr Jacob Gedleyihlekisa Zuma does not submit himself to the South African Police Service…, the Minister of Police and the National Commissioner of the South African Police Service must, within three calendar days of the expiry of the period stipulated…, take all steps that are necessary and permissible in law to ensure that Mr Jacob Gedleyihlekisa Zuma is delivered to a correctional centre in order to commence serving the sentence imposed.”
The next days will be noisy in South Africa. Already we have heard that Zuma’s son, Edward, has said he would die for his father. It is this sort of rhetoric which has always followed Jacob Zuma. Many people, including the EFF’s Julius Malema, have said they would ‘die for Zuma’ and mobilise the masses in support of this flawed and corrupt former president.
We can therefore expect Zuma’s coterie of supporters to continue defending the indefensible. After all, many of them have legal travails of their own and face, or have faced, corruption allegations. They stand to benefit from muddying the waters and from the opportunistic populism that comes with it.
It is important that we use this moment as a teachable constitutional moment and should it be necessary, the police should be ordered to arrest Zuma. It would be unfortunate, should Zuma not submit to the court’s order voluntarily. It would not be surprising, however. Zuma has consistently sought to bring our country to the edge of crisis - constitutional or otherwise.
Zuma’s trump card has always been victimhood and his purported ability to unleash destructive political forces. It is time for the country to cease being held hostage by these threats. Should there be mass mobilisation – even illegally in a time of COVID-19 - the state should act appropriately in defence of the constitutional order. That is its obligation and it should not waiver in doing so.
There is a resilience at the heart of this country, its people and institutions that is well able to face even Zuma’s worst instincts of self-preservation and destruction. Should mobilisation and chaos follow, perhaps the denouement of the tragic Zuma years, then we as a society should meet that moment head-on. President Ramaphosa should too. Now is not the time to equivocate on the rule of law.
For its part, the ANC has said it is studying the judgment and will discuss it at its NEC meeting. That was a typically irrelevant statement from the party. It can study the judgment, as it should, but that is about its only option. It has consistently failed to hold Zuma to account and that has emboldened his egregious conduct even further. The ConCourt, our apex court, has spoken. It, not the ANC, nor Zuma’s motley band of supporters, can undo this judgment.
How we parse what happens in the next few days will be crucial. Much of the rhetoric will be populist and menacing. It will also be filled with more than its fair share of lies and disinformation about the judgment itself, the role of the judiciary, Zuma’s powerbase and there will be concomitant threats to our democracy. The media has an important role to play in shaping the narrative after this judgment.
What happened in the ConCourt on Tuesday was an important moment for cementing the rule of law. That should be our collective focus, not the lies being peddled by Zuma and his opportunistic supporters. The next days will, of course, be crucial as we rely on the democratic institutions of state to meet whatever political forces are unleashed, without fear or favour and in the interests of building a democracy based on the rule of law and not the cheap, corrupt populism Zuma would seek to conjure up.
Institutions matter. During his presidency, Zuma waged a systematic war against the country’s democratic institutions. We are paying a heavy price for his constitutional delinquency, whether by way of blackouts, bail-outs and sky-rocketing unemployment. As Khampepe ACJ pointedly said in her judgment, corruption results in the undermining of human rights. As Zuma and his supporters cry foul, we should never forget that corruption and state capture have real victims - ordinary citizens.
South Africa’s democratic institutions may be frayed at the edges, but on Tuesday the ConCourt reaffirmed the power of the Constitution as well as the centrality of the rule of law in holding the powerful to account.
There really is no place for Zuma to hide in light of this judgment. As Coretta Scott-King said, “Freedom is never really won. You earn it and win it in every generation.”
These words are apposite as we continue the work begun by Madiba and the founding fathers and mothers of the constitutional order when the first ConCourt was inaugurated.
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