Zuma’s legal woes can't be ignored

2017-08-27 06:00
President Jacob Zuma.

President Jacob Zuma.

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President Jacob Zuma’s battle with the law is the leitmotif of South Africa’s second decade of democracy. It has laid waste to democratic institutions, transfixed outraged critics and, most worrying of all, has given rise to a sentiment of futility and helplessness in the public, a kind of “Zuma fatigue”.

The ANC is tired of talking about Zuma, and the public is tired of its tiredness. But somehow, Zuma continues to defy political gravity.

Almost no one outside the ANC now defends Zuma’s apparent lack of probity. But it has become fashionable to argue that reducing our problems to Zuma is simplistic. Zuma often declares that the downfall of opposition politics is its “obsession” with him. His lieutenants and supporters describe the media’s “Zuma obsession” as, at best, a diversion from “real” socioeconomic challenges and, at worst, an act of cynical persecution.

This narrative is dangerously misguided because it shields Zuma from legitimate criticism and hinders accountability. And accountability in the realm of Zuma’s legal woes has a fundamental impact on South Africa’s institutional tapestry, precisely because Zuma’s office is the bull’s-eye of our constitutional system.

So, we should not be fascinated with Zuma for Zuma’s sake, but because democracy requires us to be fascinated with power.

Moreover, if our system of government is not agile enough to hold the president accountable, or if he is able to flout and dodge his constitutional responsibilities for two full terms, there will be far-reaching implications long after Zuma is gone. The consequences are equally significant for the credibility of the ANC. It cannot claim to be serious about corruption if it treats Zuma with kid gloves.

As such, Zuma’s legal woes are the most important, the most immediate and the most soluble political challenge facing post-democratic South Africa. The myth that we can ignore them must be challenged, once and for all.

Accountability matters

Although many in the ANC would like to believe that the Zuma period will be remembered as a regrettable interlude, we cannot allow the legal and ethical uncertainty that surround his behaviour to go unchallenged. A chief reason for this is that Zuma’s getaway strategy attacks several key values contained in our Constitution. Central among these is accountability.

Accountability is a combination of virtuous elements which lie at the heart of democracy. It is a necessary ingredient in maintaining a reasonable link between the power conferred on public officials and their responsibilities to the people who give them that power.

And any assault on one of its components via the institutions established to protect them has spillover effects for the ideal in its totality. Like a complex weather system, small changes in one dimension of accountability can harm democratic outcomes in other parts of the system.

And, in the case of the president, the question of accountability becomes all the more important, precisely because the president is the person vested with the most political power in the country.

This is vital in the South African context since the powers of the president are particularly expansive under the Constitution.

This deserves underscoring since it relates directly to the question of presidential centrality in the constitutional system. If there is insufficient impartiality in the appointment of judges because of presidential prerogative, then any president seeking judicial protection may influence the system for personal – and not public – benefit.

A host of studies comparing presidential power, in various places and at various points in time, reveal that the South African Constitution affords uncharacteristically wide powers to the president.

In an article that combines data for presidential power from hundreds of sources and 35 studies, political scientists David Doyle and Robert Elgie find that the powers of South Africa’s president rank similarly to those of leaders who held power during the tumultuous political instability of the Second Brazilian Republic, of Ukraine under former president Leonid Kravchuk, and of leaders in Germany in the immediate period before the Third Reich.

Strikingly, the data shows that the powers of the South African president are wider than those of ousted former Tunisian president Zine El Abidine Ben Ali.

This relatively large ambit of autonomy also impacts on the possibility of parliamentary oversight. According to the Constitution, members of the executive must be drawn from Parliament. But Parliament also oversees the executive. This puts parliamentarians in a difficult position: they must choose between being tough on the executive and future career progression.

Zuma’s several Cabinet reshuffles have sent a clear message to his parliamentary caucus that the latter option would only be possible if parliamentarians remain unquestioning.

The consequences are not simply abstract. While it is difficult to determine the amount lost to political corruption and maladministration each year (precisely because corruption often involves attempts to hide itself), estimates drawing on international benchmarks and reports of the South African Auditor-General put the figure at about R30 billion a year.

Thus, the context into which executive impunity in South Africa exists cannot go unnoticed. The creation of a culture of impunity for the powerful can only exacerbate social unrest and deepen the seeming distance between public representatives and the people the Constitution enjoins them to represent.

But corruption is not the end of the problem since crime itself is also a serious problem in South Africa.

The sustained attack on law enforcement agencies has direct consequences for ordinary citizens, who must rely on the police and state prosecutorial agencies to act on their behalf, free from corruption and interference. By eroding public confidence in institutions ultimately designed to protect citizens, the ANC under Zuma risks dangerously undermining confidence in the state itself.

This problem becomes all the more serious when we consider the criminality of the state through its involvement in state terror and intimidation of the kind directed against workers and students in the Zuma era.

Conclusion

Some object to the view that the Zuma era poses a long-term threat to South Africa’s democracy. They argue that Zuma may well escape prosecution because of the procedural flaws associated with the investigations against him. His legal team has consistently argued that the chances of a fair trial have been irrevocably damaged by the nature of the investigation. This is incorrect.

That there may have been irregularities in the investigation – a matter that has by no means yet been settled – leaves untouched the question of whether the charges themselves are legitimate.

To suggest that procedural matters can trump substantive matters in a case this important would be to suggest that a murder case should be thrown out because of the timing of the institution of the prosecution: clearly, whether a murder was committed remains important.

Even if, by some technicality, the prosecution was declared unviable, that would not absolve Zuma’s ethical conduct, as former president Thabo Mbeki made clear on the day of his firing.

Second, some have painted the Zuma era as interregnal, something of a wait between more competent leaders, suggesting that South Africa can quickly recover from the damage done if the ANC “comes to its senses” after Zuma. This sort of thinking is naive. It forgets that, even after Zuma’s second presidential term, the question of his corruption will not evaporate.

If anything, it will only intensify since Zuma will not have direct access to state power, and therefore the ability to avoid prosecution. Zuma’s successor will inevitably have to decide whether to pursue the charges or not. This decision will be a quintessential dilemma: if charges are pursued, it could tear the ANC apart from the inside, and leave all those who defended Zuma with egg on their faces if he is ultimately found guilty. It will render Zuma’s two terms a farce.

But if Zuma’s successor manipulates state institutions to defend their predecessor, this will only deepen the rot, or the steady hand of justice will eventually solve the problem years down the line.

The simple fact is this: any president after Zuma will have to decide whether to choose loyalty to their predecessor and party over loyalty to the rule of law.

For these reasons, it is crucial to appreciate the significance of Zuma’s legal woes. Once it is established as a norm that equality under the law ceases to apply to the president, the architecture of our constitutional system will suffer a blow from which it will be difficult to recover, whatever consolations we are given.

It is therefore a myth that we can sweep Zuma’s legal woes under the carpet – that Zuma can ride off into the sunset without having had his day in court. For the sake of the integrity of our democratic institutions and the compact that exists between citizens and their representatives, we must pursue Zuma relentlessly until he confronts the charges hanging over his head; until the only possible option for his resurrection is acquittal by an independent court, hearing charges brought by an independent investigative institution, prosecuted by an independent prosecutorial authority.

Our country cannot move forward until we dispense with the myth that Zuma’s legal woes are a private matter, removed from the heart of our democracy.

This is an edited extract from Mpofu-Walsh’s book, Democracy and Delusion: 10 Myths in South African Politics

Do you think failure to prosecute Zuma will have a lasting effect on SA and its institutions?

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Read more on:    anc  |  jacob zuma

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