Are Julius Malema and his redshirts the new guardians of our Constitution?

Julius Malema
Julius Malema

It was a turning point in post-apartheid South African politics. What was evident at the Constitutional Court on Tuesday was that the ANC, which gave us the Constitution, is now its debaser, rather than its protector.

But look at what the EFF did in Parliament two days later at the state of the nation address.

Are Julius Malema and his redshirts the new guardians of our Constitution?

If the proceedings at Thursday’s state of the nation address (Sona) were political theatre, and if the actors were “playing to the gallery”, then the two principals – Jacob Zuma and Julius Malema – must have been playing to one member of the audience in particular: Mogoeng Mogoeng, the chief justice, sitting in the gallery of the National Assembly.

For it is Mogoeng’s court that will rule, imminently, on whether Zuma has violated not just the Constitution but his oath of office in defying the Public Protector’s finding that he must repay the fiscus for some of the improvements to his private home at Nkandla.

In the normal order of things, the judges’ deliberations should not be swayed, in any way, by the kind of political theatre we witnessed on Thursday night: the calculated contempt that Malema’s Economic Freedom Fighters (EFF) showed towards both “Zupta” and the legislature’s office bearers, on the one hand, and the performance of an engaged and responsive head of state who “listens” to businessmen and Marabastad commuters alike, on the other.

But in an extraordinary appeal to the Constitutional Court on Tuesday, Zuma’s counsel, Jeremy Gauntlett, urged the judges to make a ruling based on politics, rather than law, in deciding on whether to censure the president.

Gauntlett did this by conceding, immediately, that not only would Zuma pay for the nonessential improvements to his property, but he had been wrong in refusing to accept Thuli Madonsela’s findings against him as binding, and in using both his executive and Parliament to second-guess her.

Gauntlett’s primary concern – and thus, we can assume, that of his client – was that the court should not allow itself to be “inveigled” into making “some form of wide, condemnatory order” which would be used to impeach Zuma.

Such a judgment could destabilise the country, given that this “is a delicate time, in a dangerous year”.

Gauntlett seemed to be urging the judges to look up at the thuggish heavies in dark glasses surrounding their blunt commander in chief, and to realise that they risked being used by these demagogic populists to bring about revolution.

You will be in Parliament in two days’ time, he was saying to Mogoeng and his Bench: look at how these children behave, and weigh it against the power that the Constitution – and the electorate – have vested in my client.

The ANC has often sought to portray the EFF as “barbarians at the gate”, rabble who do not respect the rule of law, or the laws of Parliament.

This was clear, once more, in the schoolmarmish cadences of Speaker Baleka Mbete and the more authoritative boom of National Council of Provinces chairperson Thandi Modise on Thursday.

Interestingly, on Thursday night, perhaps mindful of the chief justice in the gallery, the EFF parliamentarians backed down, and left voluntarily: they had perhaps reckoned that it would not suit their cause, or their case, if they were to be seen engaged in violent confrontation with Parliament’s security detail.

They nevertheless appeared to be clear about their contempt: “Zuma is no longer a president that deserves respect from anyone,” Malema cried. “He has stolen from us. He has collapsed the economy of South Africa. He has made this country a joke, and after that he has laughed at us ... He is not our president. Zupta must fall!”

A surprise player in Thursday night’s theatre, the Congress of the People’s Mosioua Lekota, put it more crisply when he walked out: Zuma was “no longer honourable” because he had broken his oath of office by lying about Nkandla.

Given how debased the phrase ‘honourable member’ has become, in the now annual farcical disruptive prelude to Sona, Lekota’s statement hits home.

And this is the point, and the fundamental weakness in Gauntlett’s argument and President Zuma’s position.

Even if Zuma did manage to be “presidential” in his speech once his antagonists had left the House, his own actions – admitted in his concessions to the Constitutional Court two days previously – had shown him up, incontrovertibly, to be the one who is debasing our democracy and its institutions. Nowhere was this clearer than in the way Gauntlett conceded the wrong-headedness of the attempts of both Zuma’s Cabinet and Parliament to second-guess and discredit the Public Protector.

This truth was most painfully manifest in the way the court grilled Mbete’s counsel, Lindi Nkosi-Thomas, and forced her to concede that Parliament had been wrong in trying to override the constitutional powers of the Public Protector.

Zuma had misled and abused not only his own comrades, but Parliament itself, the very institution set up to watch over him; this Parliament, too, had become dishonourable in allowing itself to be used in this way.

Zuma’s concession in the court, in the face of the evidence against him, really was a case of too little, too late. And so Gauntlett’s call for a political consideration on the part of the court was nothing short of desperate.

Because the truth is that, even if the court does not to issue an order declaring that Zuma violated his oath of office, these violations have in effect already been proven by Zuma’s concessions.

The damage is done, even if Zuma’s hold over the governing party is still so strong that his comrades cannot effect a recall of him, as they once did to his predecessor, Thabo Mbeki.

And so, at Constitution Hill on Tuesday, we had the unexpected spectacle of Zuma, the president of this country, asking the court to make a political ruling on his behalf, while we had the supposed “rabble” – the EFF – expertly arguing the law through its counsel, Wim Trengove, in alliance with the more “respectable” DA.

It was a key turning point in post-apartheid South African politics. The ANC, which gave us the Constitution, is now its debaser, rather than its protector.

Zuma and the toadies who continue to protect him are the real barbarians at the gate, even if the vestments of power allow them to present themselves, still, as the establishment – and even if good men, such as Pravin Gordhan, are compelled to work with them to keep our country on track.

Does this mean that the party of Oliver Tambo, Nelson Mandela and Mbeki has handed over the baton, as the custodians of our democracy, to Julius Malema?

In the way it has used the legal system against Zuma, the EFF has undoubtedly strengthened our democracy. And Malema has become, in the process, what the analyst Susan Booysen calls an “accidental constitutionalist”.

Another analyst, Steven Friedman, makes the salient point that the EFF triumphed this week by using the system rather than by disrupting it: going to the courts proved much more effective in getting Zuma to “pay back the money” than standing up and screaming in Parliament was.

Given Malema’s behaviour – even last week, in his threats to ANN7 journalists and his xenophobic utterances on the Guptas – we have every reason to be sceptical of his recent embrace of constitutionalism.

But one of the reasons the EFF has proven so effective in setting the agenda of South African politics is that it is proving itself to be immensely creative, constantly adapting itself to its growing electorate, both among poor people and professionals, and to new fields of engagement as they present themselves.

Even in the way the EFF parliamentarians comported themselves in the House on Thursday, there was, it seemed, the conflicting pull of two opposite impulses: to disrupt or to be law-abiding.

Why even pretend to be concerned about the rules of the House if you have already proven, two days previously, that the House itself is deserving of your contempt, and that the man about to address it is in violation of the Constitution and his oath of office?

Why not just walk out, neatly and clearly, as Lekota did, or decide to stay and listen, as Mmusi Maimane did?

If you are true revolutionaries, why not push things to their logical conclusion and refuse to leave? Why not provoke violence, so you can show yourselves to be the victims of state suppression, and disrupt things to the maximum?

Is it because Malema and his team calculated that their strategy was the one best poised to win them more votes? Or is it because – particularly after their Tuesday victory – they are in new territory and still figuring out how to deal with it? The EFF leaders want to be fervent revolutionaries, at the barricades in their red berets.

But they also want to be the custodians of our Constitution, and they have seen how this works in their favour. How they balance these two roles will determine our national politics in the months and years to come.

Has President Zuma violated his oath of office, and what should the consequences be?

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