No way, no how, no Zuma
Urging her supporters to unite behind Barack Obama's presidential bid
at the Democratic Party Convention on Tuesday, Hillary Clinton
declared: "No way, no how, no McCain". It is a slogan that might well
be applied to our own presidential candidate, Jacob Zuma, should he
persist in his efforts to ascend to the presidency by
anti-constitutional means.
Zuma seems determined to occupy the highest office of state by hook or
by crook. The crookery involves a so-called "political solution" to
his corruption charges, with options ranging from the National
Prosecuting Authority (NPA) being pressured to drop the charges, to
the Constitution being amended to give Zuma some form of amnesty or
immunity from prosecution.
Yunus Carrim, the ANC's chairperson of Parliament's justice committee,
has called for a political solution that is "legally and
constitutionally tenable". But this is a contradiction in terms. There
is no such thing as a "legally and constitutionally tenable" political
deal, since any attempt to delay or prevent Zuma from standing trial
on corruption charges, or to find a political way out of a legal
matter, would undermine the principle that all are equal before the
law. Once we place a politician above the law because of his status,
we irreparably undermine our constitutional democracy.
Astonishingly, the idea that Zuma should get special treatment is
gaining support, even outside of the ruling party and its alliance
partners. The proponents of this view argue that Zuma's trial (and the
possibility he may be convicted) would render our country politically
unstable.
In the Mail&Guardian last week, the chief executive of Business Unity
South Africa (which represents 80% of businesses), Jerry Vilakazi, was
quoted as saying: "This matter [of Zuma] must be brought to closure so
that the country can proceed with certainty of political leadership.
If it requires a political solution, let a political solution be
found".
The central committee of the South African Communist Party (SACP),
meanwhile, has claimed that the continuation of Zuma's trial poses a
threat to political stability in that it "unduly raise[s] the
political temperature…in a manner that can negatively
affect…stability…and democracy".
This is political blackmail, as several commentators have noted. Who
is going to threaten stability or raise the political temperature if
Zuma's trial proceeds? It is usually the very people who are warning
of instability and civil conflict. They issue threats and then piously
raise the alarm about the consequences, as if they have the country's
interests at heart. Such threats are in themselves unconstitutional.
The first duty of any citizen who wants to secure South Africa's
stability is to defend the Constitution. If Zuma and his allies are
concerned with political instability, why do they speak and act so
recklessly in defence of their leader, attack the judiciary and incite
mob behaviour? If the ANC Youth League and the SACP are concerned with
stability, then why don't they desist from these tactics and allow the
law to take its course? Indeed, why do they persist with Zuma's
candidacy?
Clearly, the best outcome for South Africa would be for Zuma to remove
himself from the presidential race until a court of law has delivered
its final verdict in the case against him.
In any event, the stability argument for a political solution is
clearly a bogus one. Firstly, a political deal would threaten
constitutional democracy in South Africa by circumventing the rule of
law and the principle of equality before the law; without which there
is a far greater risk of South Africa descending into lawlessness.
Secondly, a political solution would smash the founding compact of our
democracy by elevating the narrow interests of the ANC's ruling clique
over the sanctity of the Constitution. Democracy can only and
ultimately be safeguarded by constitutionalism, which recognises that
democratic and accountable government must be coupled with
constitutional limits on the ruling party's power.
Thirdly, a political compromise would deligitimise two key
institutions of democracy: the judiciary and the National Prosecuting
Authority. A political rather than a legal settlement would make it
extremely difficult for the NPA to prosecute politically sensitive
cases in future. By sidestepping the courts, the authority and
legitimacy of the judiciary would be permanently dented, and the
principle of separation of powers (between the legislature, the
executive and the judiciary) would be rendered meaningless.
Fourthly, by undermining confidence in public institutions, a special
deal for Zuma would cause uncertainty and instability, thereby
increasing political risk and potentially leading to foreign
disinvestment.
Finally, without actually hearing the merits of the fraud and
corruption case against Zuma, and without having seen the charges
against him tested in a court of law, we will be denied the
opportunity to assess – on the basis of a court judgment – his probity
and suitability for public office. This would set an intolerable
benchmark for public life in South Africa by paving the way for
individuals with grave allegations of public misconduct hanging over
their heads to assume office without having to answer their accusers.
Where these individuals are given the opportunity to defend themselves
in an impartial court of law, but actively avoid doing so by dragging
out the legal process through endless pre-trial appeals or by trying
to skirt the courts altogether, the cloud of public doubt will hang
particularly heavily over their heads.
Zuma and his backers are no great friends of the Constitution. In
fact, they view it as their enemy; as the one thing that stands as an
obstacle in their path to absolute power. Zuma himself has said: "The
ANC is more important than even the Constitution of the country". By
this he means that he is more important than the Constitution, since
he and his clique conflate their own personal interests with the
ANC's. This notion of "the higher law of the ruling party" taking
precedence over the law of the country and the duty of judges to
interpret that law is the greatest risk to the future of
constitutional democracy.
In short, a political deal for Zuma would amount to a rejection of the
Constitution, and accelerate the decline of constitutionalism in South
Africa. This is a far greater risk to our country's stability than
anything Zuma's backers can threaten. We must stare the political
blackmailers down, at this early stage in our democracy, and reject
their threats decisively, once and for all.
Best Wishes
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