EBRAHIM FAKIR: Instigation, insurrection & informality – eroding the rule of law


Violent protest, criminality, political thuggery and looting are not new phenomena in South Africa's social political firmament. They're features derived from an inheritance of struggle and resistance, the general trajectory of rendering the country ungovernable on instruction from the African National Congress. Perhaps not ideal, it is legitimate and understandable under the circumstances, even if its more pernicious have been harder to leave behind. This trajectory has continued into the post-apartheid era in the direct action centred on community protests around service delivery, an unresponsive government or internecine party factional strife. The general contagion also sees it spreading from one area to another, in copy-cat acts. If current political cultures in society trace their lineage to the past, so too do unacceptable acts of injustice, inequality and marginalisation. Looting and criminality of the successive unjust colonial and colonial-apartheid “governments” get rehearsed and repeated by a democratically elected one.

Both in scale and intensity, the protests of the last few days - what can only most properly be called a seditious insurrection - are different in motive, scale, spread and intensity, unmatched by anything that has gone before. The multiple community, service delivery, or party factional protests are usually motivated by relative deprivation, unresponsive public officials, and contagion copy-cat acts targeted at getting the attention of policymakers, or for resource mobilisation for community development.

But the current insurrectionary wave is clearly orchestrated. It is unmistakably planned, targeted, coordinated and managed to disrupt normal social life, production, distribution, trade and commerce, as well as the supply lines that sustain and facilitate them. Naturally, along with the managed aspects, it is to be expected that opportunistic and spontaneous acts of sporadic looting and generalised mayhem will feature. The two exist in a symbiotic relationship of mutual benefit, calculated to inflict maximum damage in destabilisation in society.

What is this destabilisation in service of?

Keeping out former President Jacob Zuma and acolytes from prosecution and jail. These are calculated to stray momentum away from the upcoming trails and substantive charges faced, especially since a degree of predictability and consistency is clawing its way slowly back into the criminal justice system.

Lurking behind the “reasoning” of the “protests”, what Mzwanele Manyi, spokesperson of the Jacob Zuma Foundation, calls the “righteous indignation” at the jailing of Zuma, are misrepresentations and fallacious legal and political arguments, designed to obfuscate the real issues and infractions through constructing arguments engaging in false equivalences.

On the legal front, this has centred on two principled arguments. The first suggests that the court decided such exceptional and extraordinary procedures for hearing Zuma’s case that these are tantamount to targeting that. He is therefore a victim. Further, that he was denied by dint of the special procedures - a properly ventilated consideration of the issues in a lower court. This was unnecessary. There were no issues for ventilation. The simple requirement was for Zuma to appear before the Constitutional Court and simply state why he refused to respond to a series of summons to appear before the state capture commission of enquiry. Legally speaking, there was no “special procedures” that the court invested, as is falsely claimed.

Second, is a comical attempt at a political argument about "detention without trial" by trying to make a political argument masquerade as a legal juridical, one. First, there was no trial because Zuma refused to appear, despite being granted the opportunity. In effect, he denied himself a trial. The emotive fall-back to ugly memories of apartheid era detentions without trial failed, despite numerous rehearsals of the canard.

More egregious than pretend legal argument (and the subsequent shifty ones made in the rescission application, which seems more like an appeal and a mitigation argument) is the so-called political argument.

These arguments are unsurprising coming from political revanchists like Mzwanele Manyi and the vaccillating Julius Malema harking bark to the days of Zuma's manipulative, but calculated informalised mode of government.

But it is entirely surprising coming from the usually astute Moeletsi Mbeki.

"Is Jacob Zuma worth the lives of 45 people? Is the rule of law worth the destruction we've seen?" Mbeki asked the SABC.

It’d be short-sighted to be seduced by this argument, suggesting that there are political solutions to legal problems. Worse is that it suggests that moments of deliberate criminality, or punishable acts of legal commission or omission, can be forgiven if one is wealthy, powerful or popular enough, or if you have the capacity to threaten and in this case, actually deliver, mayhem.

Having failed to gain traction with legal argument and with a thwarted political argument, the orchestrated protests appear to be the last gasps of a desperate strategy left with few options as the threat of prosecution, punishment and sanction becomes ever more real for acts of bribery, corruption, and general malfeasance. Aimed at forcing a a "political solution", relenting to this will be disastrous for our politics, and our law. And in the process of governance, that is the intersection of politics and the law.

The question, though, is why is the legal system insufficient and unnecessary, when the same legal system is good enough, exclusively when it exonerates? Why is a political solution necessary when Zuma himself has made rigorous (if cynical) use of the legal system he and his acolytes contend is so fundamentally tainted through manipulation and victimising him? Remember, he used the same legal system to sue for a stay of a prosecution, which he accepted. Once it was overturned, it was no longer just.

The moral equivocation of using the law to sue for a stay of prosecution, but at the same time suing society for a political deal through the threat of anarchy and instability, suggests a startling conflation of context with content, principle with pragmatism, and will lead to the undermining of the regulatory ability of the state. It is a vital duty for the management and preservation of the rights of citizens through the presence of a well-functioning and effective judiciary, in whose absence predatory interests take root.

More fundamentally, the coercive and enforcement functions of the state will be eroded, and the legitimate use of state power like the judicial system and the police and defence forces to extract institutional and citizen compliance to obligations and enforce laws and regulations for the good of society will be compromised.

It sends the signal that society's rules - including those where wrongs are committed and appropriately punished - don't apply to those who are powerful and popular.

This is unsurprising, since Zuma presided over a party in government that tried to entrench the exercise of authority and rule through institutional decay, system manipulation and the crude use of majority in representative and oversight institutions. As a political project, Zuma has always presided over and actively participated in process subversion and procedural irregularity, which means that the political and governance vices of informality, impunity and unaccountability entrench themselves. This undermines both the rule of law and the rule by law. Its unsurprising that his supporters rehearse this argument and wish President Cyril Ramaphosa to govern in similar manner.

Relenting to this might stem the tide of current insurrectionary sedition, but will entrench the notion of the informalised, selective rule of law (ironically – a hallmark of apartheid), which will entrench the governing ANC’s crisis of credulity and credibility, and launch South Africa into to a full-blown societal legitimation crisis.

This is a situation Ramaphosa, and South Africa, can ill afford.

Ebrahim Fakir is Director of Programmes at the Auwal Socio Economic Research Institute (ASRI) and is a member of the board of directors of Afesis-Corplan, a development NGO based in the Eastern Cape. He is also a member of the Council of the Advancement of South Africa’s Constitution (CASAC). Follow him on Twitter on @EbrahimFakir.