MANDY WIENER: Naïve architects of Constitution did not foresee a 'Jacob Zuma'

The Constitution of South Africa is clear on who is eligible to be a member of the National Assembly and what precludes someone from being an MP. 

Every citizen who may vote is entitled to be a member of the NA. 

Those who are excluded include people employed or appointed by the state who are paid for this work, insolvents, as well as people declared by a court to be mentally unsound. People convicted of an offence and sentenced to more than a year in prison without the option of a fine after October 1996 also cannot be MPs. “Such people qualify for membership of the National Assembly again five years after their sentences have been completed,” says the law.

It also makes clear that parties hold seats in Parliament and not individuals. 

I have often said before that the authors of our Constitution 30 years ago may not have envisaged our current political climate and may well have been naïve in a lack of foresight. They would not have envisaged a scenario where an impeached judge or impeached Public Protector could be an MP or even someone with the track record and legacy of former President Jacob Zuma could be reelected as a lawmaker. 

It is because of the clarity in this legislation that so many legal analysts and political reporters were surprised by Tuesday’s Electoral Court judgment regarding Zuma. The law is clear that if an individual has been convicted of an offence and sentenced to more than a year in prison, they should not be eligible to go to Parliament. 

Zuma was sentenced to 15 months in prison in 2021 for contempt of court which means he should not be eligible. However, a decision by President Ramaphosa to rescind his sentence appears to have been key to the Electoral Court’s decision. 

Crucially, the court has not released its reasons for the judgment and those could go a long way in clarifying why this decision was made. 

The question is whether the criteria as stipulated in the Constitution remain relevant or whether the bar for entry to Parliament should be higher than what it currently is. 

According to the law, it is only a criminal conviction that is the bar. 

I would argue that if an individual has proven that they are incompetent, that they have overseen gross mismanagement and negligence whilst in a position of authority, and that under their watch there has been widescale looting and abuse of power, which should rule them out from holding an esteemed position as a lawmaker. 

In addition to his criminal conviction, Zuma oversaw a devastating and damaging period of state capture. The country’s institutions were eviscerated, rampant crime and corruption were allowed to get out of control, infrastructure deteriorated, the economy stalled, and billions were siphoned from the fiscus. 

Surely, we should have a higher moral and ethical standard to which we hold our lawmakers? When the criminal justice system has been weakened to the extent that it has, it cannot merely be the mark of a conviction that is the sole barrier to entry to the National Assembly. 

If Zuma is eligible to be an MP, then surely the system must be broken. 

Similarly, the fact that an impeached Public Protector in Busisiwe Mkhwebane can be a Member of Parliament is astonishing, never mind the fact that she sat on the committee interviewing candidates to find a new deputy Public Protector. That process collapsed only because of an in-house legal opinion that Mkhwebane’s relationship with two of the candidates created a perception of bias. She should never have been allowed to sit on the panel, because she had been impeached herself.

Again, there should be a moral and ethical bar in addition to solely a legal one. 

It has been reported that Mkhwebane spent over R33 million of taxpayers’ money on her repeated legal attempts to defend her impeachment and effectively wiped out the Public Protector’s legal budget. 

That act alone, one of personal self-preservation, does not demonstrate the intentions of a lawmaker who is acting in the public interest. 

As my colleague Lindsay Dentlinger has also pointed out, Parliament will also inevitably have to grapple with how to deal with impeached judges who may want to make themselves available to serve as MPs. What would happen if, hypothetically, impeached former Western Cape High Court Judge John Hlophe pops up as a potential MP?
 
Political analyst Asanda Ngoasheng told me on The Midday Report this week that she would not go as far as to say the architects of the Constitution were naïve, but that perhaps we are wrong to assume that politicians can walk the line between what is legal and what is ethical. 

“We never thought we could get to this stage for various reasons. Jacob Zuma, one of his contributions, is that he made us really think about our Constitution and things we assumed of people who are in leadership and people’s ability to be ethical and walk the line between what is legal and what is ethical and moral, and it seems a lot of our politicians are unable to do that,” she explains. 

Ngoasheng points out that responsibility will now fall to the Judiciary to hold the executive and administrative arms of government to account.

“You don’t want to be a country who has people who have allegations of corruption and everything else Zuma has gone through all the way down to the Zondo Commission and to be able to come back and potentially do the same thing again. You want there to be consequences for negative actions by those who are given a lot of power. And for me, one of the biggest questions that is now sitting with us is the role of the judiciary. I think this is a moment when the judiciary is going to have to play a critical role in deciding the next steps because it does have a role to play.” 

The Constitution is a living document, and it does get altered through legislation passed by the National Assembly and through legal challenges to the Constitutional Court. Perhaps this is an inflexion point to consider whether the legal requirements to be a public representative in the National Assembly, as per the Constitution, are sufficient in our current climate.