21 October 2021, Dan Mafora
The strongman’s vision of democracy: Former South African President Jacob Zuma’s various rationalizations and obstructions for his crimes make for good drama. But they also reveal Zuma’s aversion to the rule of law.
Jacob Zuma, South Africa’s beleaguered ex-president, has long had an authoritarian bent. Addressing a summit of the South African Local Government Association in 2015, Zuma, then still president, uttered perhaps the most telling sentence in the history of South African politics: “If I were a dictator, I would change a few things.” He went on to lament the existence of rights (and, presumably, South Africans’ entitlement to exercise them), the fact that executive decisions had to be made after consultation with various political actors, and that those decisions were, after all that, still vulnerable to judicial review.
Zuma is now facing possible imprisonment for contempt of court and refusing to appear before the state capture commission; additionally, he is due to start his corruption trial in mid-May. Of course, Zuma’s legal woes predated his election as president. He ascended to the presidency of the African National Congress (ANC) under a cloud of corruption, bribery, and fraud allegations related to his involvement in the Arms Deal saga. Later, when then-president Thabo Mbeki (1999–2008) was forced out of office by the ANC, the caretaker president, Kgalema Motlanthe (2008–2009), recommended the dismissal of the national head of prosecutions and initiated the process to disband the Scorpions (the country’s elite anti-corruption unit at the time). All these events led to the charges against Zuma being withdrawn.
In the years that followed, cases related to the withdrawal of the charges made their way through the courts. In every major case, Zuma lost. The decision to withdraw the corruption, bribery, and fraud charges was ultimately found by the Supreme Court of Appeal (SCA) to have been irrational, based on false allegations of a political conspiracy against Zuma carried out by the country’s intelligence agencies, presumably under the direction of Mbeki. As it became apparent that the prosecuting authority would soon have to decide whether or not to continue with Zuma’s prosecution, Zuma’s attention turned to its leadership. In May 2015, after a protracted inquiry into his fitness for office initiated within months of his appointment, then-head of prosecutions Mxolisi Nxasana resigned, induced by an offer from Zuma to pay out the remainder of his seven-year term. In the same year, Zuma appointed Shaun Abrahams as Nxasana’s replacement. In October 2017, after the SCA judgment, Abrahams was tasked with deciding whether or not to prosecute Zuma. Shortly thereafter, in December 2017, a high court ruling found Nxasana’s resignation to have in fact been a dismissal by Zuma, one which did not meet the requirements of the law. It ordered that Abrahams vacate his office and Nxasana be reinstated. (The Constitutional Court, South Africa’s highest court, later reached the same conclusion, but ordered that neither of them should occupy the office.)
In the end, a new prosecutions head would be appointed. In the meantime, Zuma had resigned in February 2018 under pressure from the ANC, with Cyril Ramaphosa sworn in as president in his place. A few weeks later, Abrahams announced that Zuma’s prosecution would proceed.
One would be mistaken to assume that this would be the height of Zuma’s legal woes. During his term, US$16.7 million of public monies (according to exchange rates at the time) had been used to upgrade his family homestead in Nkandla. An investigation by then-public protector Thuli Madonsela found that some of the upgrades had not been necessary security upgrades, that Zuma had unduly benefited from them, and that the public funds used for those upgrades should be refunded to the state. The Constitutional Court confirmed that the upgrades were indeed in excess of what was necessary and ordered Zuma to pay back an amount to be determined upon valuation of those upgrades. It also found that Zuma had breached his oath of office, a ruling many expected to be the final nail in the coffin of his presidency. It would not be so. The ANC, known for the jealous protection of its own, used its parliamentary majority to defeat several motions of no confidence which, if successful, would have meant Zuma and his entire cabinet would have had to resign.
A second report by Madonsela, released in October 2016, put Zuma at the center of a grand scheme of corruption known now to South Africans as “state capture” (nowadays the subject of a well-publicized government commission). In it, she investigated claims that Zuma had allowed and indeed empowered the Guptas, a wealthy Indian family, to make and influence the making of important executive decisions. These included, among others, the appointment of cabinet members: it was alleged that several high-ranking ANC members of parliament had been invited to the Gupta household and offered bagfuls of cash and cabinet positions in exchange for government contracts. This, it was alleged, led to almost all of South Africa’s state-owned companies being bled dry of cash by overpriced and illegally concluded deals. Zuma was alleged to have been either personally involved in or aware of many of these dealings. In her report, Madonsela found that there were many claims which warranted further investigation and that due to the lack of resources in her office and the impending end of her term—which would act as a time limit on the investigation—it was necessary that they be referred to a commission of inquiry for a proper and fuller investigation.
The power to appoint a commission of inquiry rests with the president, so it would be Zuma who would appoint it. However, because he was to be the primary focus of this investigation, Madonsela stipulated that the chairperson of the commission would have to be a judge appointed by the country’s chief justice. Zuma moved quickly, first to try and interdict the release of the report, and second to challenge the constitutionality of its recommendations, especially those which required him to establish a commission of inquiry and assigned the power to appoint its chairperson to the chief justice. His challenge failed in the high court, and while he launched an appeal to the SCA, he appointed the deputy chief justice Raymond Zondo as the chairperson of the commission. Commissions of inquiry are executive organs appointed by the president, primarily used for fact-finding purposes in order to inform policy and/or legislative change. They are usually incorrectly referred to as “judicial commissions of inquiry,” largely because of South Africa’s culture of appointing retired judges to head them. In truth, their findings are not binding on the president and he may disregard them, and they usually only exist for as long as he determines. The Zondo commission, however, functions quite differently due to its strange origins.
As executive organs, commissions function on the basis of terms of reference which are determined by the president. Zuma used this chance to set terms of reference which were much wider than what Madonsela had initially intended. The terms of reference broadly required the commission to “investigate allegations of state capture, corruption and fraud in the Public Sector including organs of state.” This meant that the commission would have to review and investigate over nine years’ worth of contracts and procurement processes in tens, if not hundreds, of public entities. It is an almost insurmountable task, which the commission has admirably managed to narrow down to key state institutions.
While initially planned to last only for 180 days, the commission is going into its third year (with a further extension of three months recently granted) at the cost of over 1 billion rands (about US$70 million) to the taxpayer. Zuma has appeared only twice before the commission. Although his appeal against the high court’s finding on the commission’s constitutionality was withdrawn, Zuma continues to insist that it is an unconstitutional commission. At his first appearance in July 2019, he took the opportunity to narrate a long and confusing tale going back to his days in exile, detailing how he had been the subject of a long-standing political conspiracy. The commission, he said, was a culmination of his enemies’ attempts to “deal with Zuma.” At his second appearance, in November 2020, his lawyers moved for Zondo’s recusal as chairperson of the commission on matters specifically relating to any allegations against Zuma. They alleged first that Zondo and Zuma were friends, which Zondo denied; and second, that they had a preexisting familial relationship which rendered Zondo biased—an extra-marital relationship between Zondo and one of Zuma’s sisters-in-law.
Prior to his appearance in front of Zondo, the commission issued a summons requiring Zuma to present himself for testimony and to answer questions. This was after he had failed to appear on two or more occasions agreed upon by his lawyers and the commission; he had offered unconvincing reasons for his absence, such as receiving medical treatment outside of the country and procedural irregularities alleged on the part of the commission. When he eventually appeared and his lawyers moved for recusal, it was clear that this was another attempt to delay his testimony. On the return day when Zondo ruled to dismiss the recusal application, his lawyers expressed their intention to take the decision on judicial review. When the commission adjourned for a tea break, Zuma’s lawyers chose not to return and absconded the proceedings instead.
With a hard deadline of March 31, 2021 to wrap up oral hearings, the commission was running out of time and Zondo felt disrespected by Zuma and his lawyers’ conduct. He approached the Constitutional Court for an order compelling Zuma to give testimony and answer questions, which is exactly what the summons required. Zuma, in a stunning display of arrogance, wrote a letter to the court, saying simply that he would not be participating in the legal proceedings “at all.” The court granted Zondo’s order, and while the ultimate outcome favoured the commission, the court did not spare its criticism of the conduct of its proceedings. The court, in deciding whether or not the matter was urgent, found that the commission had created the urgency—that it was artificial and not real. It found that the commission had treated Zuma with undue leniency, allowing deviation from its own procedure in order to accommodate him, something it did not do for other witnesses. The court asserted that the commission, after it first became aware that Zuma would be an uncooperative witness in July 2019, should have invoked its coercive powers to compel his testimony. Nevertheless, the commission had issued lawful summons and Zuma had to comply with them. So it ordered his compliance.
What followed was a series of events that, in my view, have brought South Africa to the brink of a constitutional crisis. Many legal and political scholars, notably Professor Richard Calland of the University of Cape Town, are adamant that what is happening is not a constitutional crisis but the constitution in action. The courts, they say, will deal with Zuma. But if the Constitutional Court orders Zuma’s incarceration, a police service under the leadership of an ANC minister will have to carry out his arrest and imprisonment at the risk of an internal fallout in the party, or worse, an insurrection by millions of his “radical economic transformation” followers, who believe that the country is ruled by or on behalf of a powerful white elite whose bidding is done by major institutions like the media, banks, and even the courts. An arrest that is ordered by a court whose legitimacy Zuma’s supporters already question, and carried out by his comrades whom they accuse of using the courts for political ends, may indeed inspire a revolt—and there is very little that the courts will be able to do about it. A constitutional crisis by any other name.
Indeed, the courts were the last bulwark against what seemed to be executive dominance in the Zuma years. The ANC’s parliamentary caucus receives political instruction straight from the ANC secretary-general’s office (the incumbent is a hardline Zuma loyalist) and largely toes the party line. Every effort to hold Zuma accountable through the parliamentary process was shot down by the ANC; instead, the party simply mounted spirited defenses of his actions, even at their most egregious. Now that he is no longer its president, and amidst continued party infighting, Zuma has been left exposed and is increasingly vulnerable without the ANC’s unified support. His strategy to meet what seems like a siege on every front has become more confrontational, blunt, and less diplomatic.
Following the Constitutional Court’s order in January, the Jacob Zuma Foundation, his organizational alter ego, released a media statement declaring his intention to defy the order. And defy it he did. On February 15, 2021, when he was scheduled to appear before the commission, his lawyers wrote to the commission to inform its members that he would not, in fact, appear. They cited Zuma’s pending court action against Zondo for his refusal to recuse himself and expressed the view that the commission’s summons was not lawful. In response, the commission said it intended to seek an order for contempt of court for Zuma’s defiance of the Constitutional Court’s order. This time, Zuma said he was not defiant of the law or the court; instead, his actions were simply a form of protest against the “abuse” of the law and the authority of the court by “a few lawless judges who [had] left their constitutional post for political expediency.” To back this claim, he said that laws were being created specifically to deal with him, that Zondo had abandoned “due process,” and that there were legal inconsistencies in how the courts were dealing with his cases.
The contempt of court application was heard by the court on March 25, 2021, with the commission seeking a two-year sentence of imprisonment for Zuma. On the same day, he issued a statement in which he attacked one of the judges who sat in this case, stating that he did not have faith in any South African court to deal with him fairly, that the commission was abusing court processes, and that Zondo was trying to deflect attention away from the review application against his non-recusal. He also said he was ready to serve any sentence imposed by the court but would not “subject [himself] to an unjust court system,” warning of an uprising against what he called “judicial corruption.”
Zuma expressed concerns that there is a judicial dictatorship emerging in the country, writing that “the judiciary is now in the position where they are beyond reproach and the judges in this country are continuously taking extra powers for themselves to the detriment of the legitimate political process.” This inflammatory statement foreshadowed remarks that he would make at a meeting of the ANC’s national executive committee. Again, Zuma retraced the history of his legal woes, saying that he had not “enjoyed a day of freedom” since he was incarcerated by the apartheid state. Instead, after 1994, he became the target of forces “internal and external to” the movement, which, through the non-resolution of the 2005 Arms Deal allegations, ensured that a dark cloud hung over his head for over 20 years. He argued that the ANC had failed to protect him, choosing instead to dismiss and ignore his complaints about the commission. He also reiterated that he is no threat to democracy or the rule of law, instead describing himself as a believer and a defender who has been forced into an impossible position because that same democracy and rule of law are being abused by “powerful classes in society” who want to see his rights “trampled upon.”
The logical conclusion from all of this, of course, is that constitutional democracy simply does not work. Here, Zuma does not mince his words, declaring that “the majority of people who mandate us at every election to represent them in parliament can no longer see their aspirations being attained by us because the decisions and actions of parliament are permanently arrested by the judiciary through the constitution.” He goes on to insist that majority rule must mean majority rule with no exception and that judges have arrogated more powers to themselves than necessary, asking what would happen if the courts were to dissolve parliament and establish their own structure in its stead. Finally, he warns that if judges turn into counterrevolutionary forces against the people (which, in his view, they have, against “the people” he presumably represents), “it will be a disaster” and too late for the ANC to do anything.
Zuma’s argument against constitutional democracy proceeds along lines outlined by Carl Schmitt, the early 20th-century German political theorist and jurist. Schmitt is perhaps best known for the idea that the chief executive of any democratic government is the “guardian of the constitution.” Schmitt argued that, in a democracy, the president was the embodiment of “the will of the people” and the true sovereign: the repository of all democratic power. The president, as sovereign and as guardian of the constitution, was not only not constrained by the constitution but in fact above it and beyond its reach. He was not only empowered to execute the laws passed by the legislature, but indeed had the power personally to determine what the positive law was, and to even determine whether the conditions existed for the normal functioning and application of the law by the institutions established by the constitution.
An important part of Schmitt’s philosophy was that he did not believe that a constitutional court, as opposed to the president or a chief executive, could be the guardian of the constitution. For him, if a constitutional court could not only confine itself to resolving disputes which were uncontroversial and to which the constitution provided ready and concrete answers, it would be taking upon itself “the responsibility to determine the political identity of the people,” which would be an “illegitimate usurpation of the constituent power of the people.”
Likewise, for Zuma, the rule of law does not enable governance but hampers it. The idea that an unelected branch of government has the power to test democratically passed legislation against abstract principles of constitutional law is simply unfathomable, since, if the people elect a party to power by majority, the actions of all their elected officials must necessarily be constitutional because they embody their will. This view of democracy aligns perfectly with Schmitt’s, who believed that a “sovereign dictatorship” was not only democratic, but central to the very idea of a democracy. A sovereign dictator who sits atop a sovereign dictatorship as the chief executive in a democracy, and who embodies the will of the people, “has the power … to set aside the positive legal and constitutional order in its entirety and to create a novel positive legal and constitutional order, together with a situation of social normality that fits it.”
Zuma’s aversion to the rule of law in a constitutional democracy has long been apparent, although he has also been one of its major beneficiaries. South Africa is a mixed system with a Westminster-style parliament whose members include members of the executive and a US-style president who heads the executive but is not a member of the legislature. The constitution vests wide appointment powers in the president, in addition to the powers vested in him by parliament through legislation. That is precisely how Zuma managed to appoint his allies to key positions in government, where they would be able to protect him without necessarily breaking the law. The hollowing out of key institutions, such as the prosecuting authority, the South African Revenue Service, and public electricity utility Eskom was possible only through statutory removal powers vested in him or his ministers, who acted on his instructions.
The centralized nature of the parliamentary system, which functions through committees with leadership chosen based on political proximity to the president, ensured that Zuma remained insulated from any attempt at parliamentary oversight or accountability. The preparation and initiation of legislation by the executive also meant that whatever bills eventually arrived at his desk for signature were marshaled through by his ministers and embodied the policy choices that he and his cabinet had made.
Any challenges to legislation, policy, or executive action during his presidency were not initiated by judges but rather brought before them by various actors in society. And true to their role, where the legislation, policy, or executive action fell below the standards set by the constitution, they declared them to be so and set them aside. Zuma and his government retained the power to try again to achieve the same objectives—if they themselves were not unconstitutional—through means that would pass constitutional muster.
For all of his complaints about a judiciary that has denied him justice, Zuma exploited every legal avenue available to him to delay, and ultimately avoid, answering for his alleged crimes and misdemeanors. Many accuse him of having abused court processes, but in South African law, abuse of process is a specific legal wrong which no court has found him guilty of. That he has managed to evade standing trial for his corruption charges for well over 20 years is a testament to constitutional democracy working as it should by affording all among us the benefit of law—although, as in his case, some more than others.
That he is now able to say the quiet part out loud—that we must abolish constitutional democracy—should surprise no one. The entire record of observable history tells us that he has always thought of the presidency as the source of ultimate authority, not the constitution. Unfortunately, many of us were not alive to the danger he posed earlier on, but we should not resign ourselves to his threats of an insurrection against an order that has hitherto served us well. We must insist on pointing out just how he was able, under the same constitution, to amass an incredible amount of power over virtually every democratic institution, save for the courts—the source of his discontent. His aversion to the rule of law is not based on any inherent flaw in South Africa’s constitutional design, which mirrors that of many successful and peaceful societies, but born of his hunger for power and his flirtation with authoritarianism. His affliction is his alone. One hopes that he is healed of it in time to get what he has always asked for: his day in court. He told the ANC national executive committee that history will absolve him. Well, perhaps the criminal law will too.
By Dan Mafora
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