Paul Hoffman | 16 February 2021 Paul Hoffman says the ex-president’s attitude has created turmoil in the country and in the ranks of the ANC
There can be little doubt that if the rule of law holds sway in SA, as it should, the defiant attitude of former president Jacob Zuma to being ordered by the Constitutional Court to appear before the Zondo State Capture Commission, should lead to a finding of guilty of contempt of court and a suitable punishment. The summing up of his instruction to approach the court for appropriate relief, given by the Deputy Chief Justice on Monday 15 February, suggested only two options: a fine or imprisonment. Actually, it is possible that a suspended sentence of imprisonment will be imposed, suspended on condition that Zuma appears before and co-operates with the commission.
That step will again put the ball in his court; the wagons (actually buses) are being drawn into a laager around his Nkandla homestead, the tattered ranks of MK veterans and sundry others are on the march and the noise being made by Karl Niehaus is deafeningly fact free. Zuma’s son Edward tells television journalists that he would rather die for his father than see him comply with a duly determined order of court, one he did not oppose.
From the legal perspective Zuma does not appear to have a leg to stand on. His claim that the summons is irregular does not help him unless and until the summons is set aside. Paul Pretorius SC, evidence leader at the commission, sees nothing wrong with the summons and points out that its existence coupled with the order given by the Constitutional Court oblige Zuma to comply.
The second and only other defence raised by Zuma is that he is still waiting for judgment in his judicial review application relating to the refusal of Zondo DCJ to recuse himself as commissioner in the commission. That defence does not and cannot avail him in the absence of a temporary interdict restraining the commission from interrogating him until such time as the review is finally determined. He has not applied for such an interdict and is unlikely to get one as his case in the review is so threadbare, late in coming and without merit as not to justify the granting of an interdict of any kind.
The attitude of Zuma has created turmoil in the country and in particular in the ranks of the ANC. Some accept his victimhood and regard his misplaced reliance on the “innocent until proven guilty” principle, which applies to accused persons, not witnesses in a commission, as a sufficient basis for his blatant defiance of the highest court in the land.
Suddenly former enemies, Julius Malema and Jacob Zuma are cozying up for tea at Nkandla, while Jessie Duarte slates the DCJ for applying the law on one day and then apologizes for disrespecting him the next.
The revelations pouring out of the mouths of ANC folk at the Zondo Commission of Inquiry, as regards the inner workings of the ANC in parliament and elsewhere, have elicited howls of protest from Luthuli House and not a little dismay in the minds of constitutionalists everywhere.
It ought not to be difficult to understand the meaning of the founding provisions of the Constitution of SA. The language used is plain and the concepts are clear.
We have a unitary state founded on the supremacy of the Constitution and the rule of law. Regular elections and a multi-party system of democratic government ensure accountability, responsiveness and openness. Any law and any conduct which is inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled.
Our constitutional order was not imposed on South Africans by a departing colonial power. On the contrary, it is the product of the National Accord which was painstakingly negotiated as a middle way between the parliamentary sovereignty of the apartheid state and the revolutionary democratic centralism of the liberation movements.
The supremacy of the Constitution and the rule of law are not just “nice to haves”. Between them, they ensure that the public administration and the politicians are not allowed to paint outside the lines of the order envisaged by the Constitution. When they do, their actions may be, and are frequently, struck down by our independent and impartial courts for being conduct inconsistent with the Constitution. It is difficult to find evidence that anyone at Luthuli House accepts the supremacy of the Constitution and the rule of law.
The role of parliamentarians in our new order is to represent those who elected them, pass laws that are constitutionally compliant and exercise oversight over the executive branch of government. The latter branch is tasked with running the country according to policies and practices which have to be lawful.
When Vincent Smith, a senior ANC parliamentarian until recently, describes the role of parliamentarians in respect of oversight as “persuasive” he is acknowledging that the ANC has no clue as to how it is possible for parliament to exact accountability from the executive and the public administration.
One of the issues in our proportional representation system is that those with political ambitions have to ingratiate themselves with party bosses sufficiently to occupy a high position on the party candidates list, high enough to make the cut in the next election. Those with loftier ambitions who aspire to cabinet know better than to rock the boat with talk of the rule of law, the oversight powers of parliament and the tenets of constitutionalism. For them the route to higher office is via following the party line no matter where it goes and no matter how unconstitutional it may be on any given issue.
A good example of how the ANC has lost its way is its decision to disband the Scorpions, an anti-corruption unit in the prosecution service that was proving irksome to Jacob Zuma and his friends. A resolution of the ANC led to the passing of legislation replacing the Scorpions with the Hawks, a tame and compliant police unit which did not, and has not, investigated malfeasance in high places.
When the Constitutional Court struck down the law creating the Hawks because they are not adequately independent to be able to protect society against the corrupt both efficiently and effectively, the ANC parliamentarians, taking their lead from Luthuli House, saw to it that the Hawks’ mandate was tweaked as little as possible with a view to keeping the ANC resolution in place and freeing the Zuma-ites to do what they did to capture the state. The thought of doing things any other way than the Luthuli House way was foreign to the ANC members of the National Assembly.
It remains to be seen whether ANC members of the current parliament will do anything to expedite the processing of the August 2020 resolution of the NEC of the ANC which instructs the national cabinet urgently to establish a stand-alone, specialized and independent agency to “deal with” the corrupt.
Good people in the ANC who do understand their constitutional role (and that it trumps anything inconsistent with the Constitution that Luthuli House may have in mind) get sidelined, ridiculed and expelled.
Corrupt people in the ANC who lie, cheat and steal to amass untold wealth for themselves and their associates, are protected and promoted (even to the highest ranks); they see nothing wrong in what they do. The politics of patronage is their way of life. At least until there is nothing left to steal.
This dissonance is due to the ANC, or elements within the ANC, continuing to pursue the revolutionary agenda of the past as if the National Accord never happened and the country was not liberated in 1994. The revolution continues in the minds of these lost souls. They seek comprehensive control of all the levers of power in society (not just government).
Not for them an impartial and accountable public administration; cadre deployment committees in Luthuli House see to the deployment of ANC loyalists to all manner of positions in the public administration, the State owned enterprises and the political structures at all levels from national to local. The desire is to exercise a form of control that results in the hegemony of the revolutionary agenda and the exercise of “democratic centralism” by the ANC.
There is little prospect of the political future of the country improving while the lost children and battered wives of the revolution continue to push their unconstitutional agenda. Many ANC members are constitutionalists; they regard revolution-speak as part of the “theatre of the ANC” and not to be taken too seriously. Professor Kader Asmal called for the abandonment of the national democratic revolution, wisely so. As the dominant party at national level and in all provinces except the Western Cape, it is difficult to know why those in positions of political power need a revolution, unless the revolution is aimed at the constitutional order currently in place.
It is possible to scrap the rule of law legally – a 75% majority in parliament is required to do so, which is well beyond the 57% support that the ANC currently enjoys.
Nevertheless, there are those in the ANC who regard Luthuli House as the centre of power and see its mission as a revolutionary one rather than one which supports the implementation of the Constitution. The Bill of Rights, the most transformative part of the Constitution from the point of view of the ordinary citizen, requires the State to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. The revolutionary agenda, with its accompanying “democratic centralism” claptrap, tends to push out constitutional priorities and postpones the “better life for all” that the Constitution has in mind. Ongoing poverty and inequality bear mute testimony to the lack of progressive realization of the rights in the Bill of Rights.
Actually, the Constitution is the centre of power. The ANC, like all other political parties is constrained by the tenets, principles and parameters of the Constitution. Painting outside the lines drawn in the Constitution is invalid. There is always the risk that a court will strike down laws and conduct that are invalid under the powers that flow from the provisions of section 2 of the Constitution. A revolution aimed at overthrowing the current constitutional order is obviously deeply and darkly unconstitutional.
If the ANC is serious about the “make it up as you go along” notions of “democratic centralism” – an idea long consigned to the dustbins of history elsewhere in Africa and the world, it ought to consider the impact saying so has on the economy of the country. Investment, whether local or foreign, is scared off by such talk, Hegemonic control for the purpose of tearing down the current structures in society will devastate the economic prospects of the country.
If the NEC of the ANC were serious about the national democratic revolution it would not have passed the August 2020 resolution described above. The country needs an independent corruption busting body; the crooks and thieves in the ANC do not want their culture of impunity for their kleptocratic deeds to end; hence the Zuma-inspired and tea party fuelled push-back against constitutionalism, the binding nature of orders of court and the rule of law in general.
At this time of pandemic, economic contraction and meltdown in the job market, it is as well for all South Africans to ponder the role of the Constitution in their future welfare and to fight for its maintenance, implementation and improvement.
Unless we do, the howls of the lost or abandoned children and battered wives of the revolution will continue to disturb our equanimity and haunt our pragmatic prospects of peace that is secure, progress that is sustainable and prosperity that is equably shared.
Paul Hoffman SC is a director of Accountability Now