Zuma must commit to the rule of law, not the rule of war
Since Judge Chris Nicholson ruled in his favour last Friday, Jacob
Zuma has suddenly become a staunch supporter of the courts' role in
promoting constitutional democracy.
On Monday, he told an audience that, "Our faith in the judiciary
has…been given a further boost by the ruling…", and that the "judgment
has re-emphasised the independence of the judiciary and the critical
role it plays in interpreting our Constitution…".
Most importantly, Zuma claimed, the verdict "opened the eyes of the
nation to the critical task at hand, to…protect our democratic
institutions and prevent their abuse to further political agendas".
It is all very well for Zuma to have made these remarks after the
Pietermaritzburg High Court's ruling, since the judgment went his way.
Beforehand, however, he showed little inclination to contradict or
restrain those of his supporters who had openly intimidated the
judiciary and threatened to unleash a wave of violence if he lost his
case. One of the unintended consequences of the verdict is that Zuma's
supporters may well believe their strategy worked.
Zuma's double-dealing reflects the "lie in the soul", to use Plato's
term, of the new ANC leadership cabal elected at Polokwane: its
misguided belief that the ANC is more important than the Constitution.
When constitutional institutions happen to come down on the side of
its leaders, the ANC is happy to talk the language of
constitutionalism and proclaim its commitment to the rule of law. When
it feels thwarted by those institutions, the ANC reverts to
revolutionary war-talk; it brands them "counter-revolutionary" enemies
of the people, and elevates the rule of war over the rule of law.
A week before judgment was passed by the High Court, some of Zuma's
backers protested outside courts in KwaZulu-Natal. They carried
banners stating: "We shall take arms if need be to support [the] ANC
President". Others burnt tyres outside police stations, and threw
stones at police officers.
Neither Zuma nor the party he leads unequivocally condemned these
actions. That is because the new crop of ANC leaders has only a
tenuous attachment to the rule of law.
We have seen it in what former ANC MP Kader Asmal calls the
"militarisation of our political discourse" – statements by senior ANC
officials calling on people to "prepare for war", "kill for Zuma" and
"fight to take over the streets".
ANC Youth League President Julius Malema specialises in this sort of
inflammatory rhetoric. Before the High Court passed judgment, he
pledged: "We'll never hand over our President to jail without a fight.
We're going to fight…Any force that tries to block our way, we will
eliminate. We are on a mission here. We will crush you".
ANC Secretary-General Gwede Mantashe also made warlike threats against
the judiciary before the High Court ruled. He labelled Constitutional
Court judges "counter-revolutionaries" and said that "when the…judges
pounce on our President we should be ready at that point in time
[because] our revolution is in danger [and] we must declare to defend
it till the end".
Malema and Mantashe's pronouncements, and countless others by senior
ANC leaders, formed part of a systematic campaign of intimidation
against the judiciary over the months that Zuma appeared in court.
The reasons for the campaign are not hard to find: If the judiciary
and the Constitution stand in the way of the personal interests of the
ANC President; if they contradict decisions taken by the party; and if
they frustrate the party's drive for absolute power, then the ANC is
ready to attack the judiciary and jettison the Constitution.
That is why Zuma's recent utterances about the judiciary and other
constitutional institutions need to be taken with a pinch of salt.
After all, this is the same man who argues that "the ANC is more
important than even the Constitution of the country".
However, if Zuma is serious about the rule of law, the constitutional
mandate of the courts, the independence of the judiciary, and the
political neutrality of other democratic institutions, he must match
his words with deeds.
Firstly, he must accept the decision by the NPA to appeal the High
Court's ruling, and instruct his party to do the same. ANC
spokesperson Jessie Duarte has called the NPA's move "cynical and
ill-considered". Cosatu's KwaZulu-Natal Secretary has described it as
"a declaration of war on our people".
It is hypocritical of the ANC and its alliance partners to praise
Judge Nicholson's ruling and then to lambaste the NPA's decision to
appeal it. The NPA is fully within its rights to appeal the verdict –
that is the due process of law – and Zuma has himself had recourse to
the appeals mechanism on several occasions during his trial.
Moreover, if there is a prima facie case against Zuma, the NPA is
legally bound to explore every legal avenue to ensure justice is done.
That is what the rule of law requires, and this is what the Nicholson
judgment also emphasised.
Secondly, as ANC President, Zuma must abandon his party's cadre
deployment policy. In deploying cadres to supposedly independent state
institutions, the ANC has subordinated these institutions to its own
political agenda. Once factionalism became rife within the ruling
party, it was inevitable that cadres would use the institutions they
led to fight battles on behalf of their political masters and
persecute their political opponents.
Indeed, this is what Zuma maintains about the NPA: that President
Mbeki got the former National Director of Public Prosecutions,
Bulelani Ngcuka (a deployed ANC MP) to do his bidding in making public
claims about a prima facie case of corruption against Zuma.
Cadre deployment has completely undermined the independence of our
constitutional institutions, whose very role it is to limit the ruling
party's power and guard against the abuse of that power. It is time
for the cadre deployment policy to be discarded once and for all, and
Zuma must set the ball in motion.
But he is unlikely to do so. Why would Zuma want an independent person
as the National Director of Public Prosecutions when he is facing
allegations of 783 counts of bribery over 10 years involving
R4,2-million? Zuma has done everything to avoid his day in court in
order to gain the power of the Presidency. If he does become
President, it is likely that he – more so than Thabo Mbeki – will
abuse the office to protect and enrich himself and his clique. Cadre
deployment is one of the key tools of abuse.
Zuma's commitment to constitutionalism, and the commitment of the
ruling party's post-Polokwane leadership, has yet to be truly tested.
The NPA is to appeal the High Court ruling, and it may reinstitute
charges against Zuma. If either of those moves is successful, our
constitutional democracy will face its greatest test yet. But our
judiciary is strong, and more people support the rule of law than the
rule of war. For that reason, I believe that the Constitution, rather
than empty war-talk, will win the day.
Best Wishes
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