The attempt by former South African president Jacob Zuma to destabilise the country’s constitutional order, and defy the rule of law, does not constitute a constitutional crisis as some have claimed.
It is, nonetheless, a grave moment for modern South Africa and its fledgling democracy.
A former president who, as the Constitutional Court has pointed out, has a particular responsibility to respect the constitution even out of office, has chosen to defy an order from the highest court. This, while attacking the legitimacy of the judiciary and the Commission of Inquiry into State Capture led by Deputy Chief Justice Raymond Zondo.
A quick rendition of the history of the matter is appropriate. In 2016 then public protector Thuli Madonsela completed her report on systemic corruption in government – called State of Capture – shortly before the end of her distinguished seven-year term.
Recognising that she had barely scratched the surface of the phenomenon that South Africans now refer to as ‘state capture’ – grand corruption and repurposing of state organs for private gain – she required remedial action to be taken. Zuma, who was then president, was obliged to appoint a judicial commission of inquiry. Moreover, Madonsela wisely required that the Chief Justice, and not Zuma, identify the commission chair.
Zuma challenged Madonsela’s report and lost. And the country’s Chief Justice, Mogoeng Mogoeng, chose his deputy, Judge Zondo, to head the commission of inquiry. Zuma duly appointed him.
Judge Zondo set up the commission in January 2018 and began his marathon journey to uncover the evidence of state capture and its underlying systemic causes. He has heard more than 300 days of evidence. He has also heard evidence from 40 witnesses who have implicated Zuma.
But his attempts to have Zuma appear before him have proved futile.
Acts of defiance
The commission needs Zuma as a witness to respond to the allegations against him. But, despite his protestations to the contrary, he has no real intention of appearing before the commission. One reasonable assumption is that he hasn’t got satisfactory answers to the evidence that has been adduced. The other is that he fears he will implicate himself further.
Zondo has been more than accommodating of Zuma – perhaps too much so. This is certainly the view of the Constitutional Court as set out in its recent judgment – the judgment in which it ordered Zuma to obey the summons to appear as a witness at the commission.
Zuma has now declined to obey the summons. He failed to appear on Monday, 15 February as he was required to. He cited the spurious reason that he has launched judicial review proceedings against Judge Zondo’s decision not to recuse himself. This was in response to an equally unfounded claim of conflict of interest and bias by Zuma against Judge Zondo.
This application has no bearing on the Constitutional Court order. The apex court was aware of Zuma’s recusal challenge. But because he elected not to appear or be represented in front of the Constitutional Court, his claim that the court failed to take his recusal challenge into account seems far-fetched to say the least.
In this sense, Zuma has been hoist by his own legal strategy petard.
Contempt of court
Judge Zondo had no choice but to announce that the commission would apply to the Constitutional Court, inviting it to find Zuma in contempt of court.
Contempt of court is a common law offence in South Africa, that can lead either to a fine or a prison sentence. Judge Zondo indicated that the commission will argue for a custodial sentence if, as seems certain, Zuma is convicted of contempt of court. This paves the way for the unseemly sight of a former president being arrested and then incarcerated.
As the (then acting) Judge Clive Plaskett put it in a 2003 High Court case:
Contempt of court is a criminal offence. It is committed, generally speaking, when a person unlawfully and intentionally violates the ‘dignity, repute or authority of a judicial body’ or interferes in the administration of justice in a matter pending before such a body. It serves three important purposes, namely to protect the rights of everyone to fair trials, to maintain public confidence in the judicial arm of government and to uphold the integrity of orders of courts.
Importantly for present purposes, the court then added the following:
At the heart of the rule of law is the idea, foundational in civilised society, that the law must be administered by independent courts and that, as Dicey expressed it, ‘no man is above the law’ and ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’ in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.
That is why this is a grave and seminal moment. A former president is challenging the constitutional order.
No constitutional crisis
But this is not a constitutional crisis. A constitutional crisis is when there is an irreconcilable clash between – or dilemma in relation to – different parts of the constitutional system. Or where the constitution has failed or yielded to undue partisan political interference.
South Africa is a long way from that.
On the contrary, as it did in containing a rogue president in the final phase of Zuma’s time as president, the rule of law is holding and, slowly, bringing him and his cronies to account.
Zuma is a former president, not a sitting president.
He is, instead, an increasingly beleaguered figure, thrashing around for an exit from a legal dead end.
His actions could, nevertheless, still lead to a political crisis for the balance of power in the ruling party, the African National Congress (ANC), and the longer-term prospects for reformist President Cyril Ramaphosa.
This could have unpredictable consequences.
Zuma is in a corner and largely isolated. His only option is to stir the pot so much – even if it causes more division and conflict within the ANC – that it gives him some kind of bargaining power.
This is an awkward moment for the ANC. It is seeking to recover lost unity and restore public trust ahead of a significant municipal election later this year and a critical five-yearly national elective conference at the end of next.
The conference will determine the political future of Cyril Ramaphosa, currently president of the country and the party. The question is whether he will get a second term.
In this, Zuma’s case converges somewhat with that of his ally, the ANC’s secretary-general Ace Magashule, who is on trial for corruption. They have common interests and common cause: to undermine the political and democratic order to try and save their skins.
In my view they will fail. And the constitution will once again prevail. But, as ever with Zuma, there is likely to be collateral damage.