In the discussions around former president Jacob Zuma’s planned defiance of the Constitutional Court, it is worth revisiting some poignant words that were said by prominent individuals with respect to South Africa’s founding document and the obligations it places on us all.
The first utterance was from democratic South Africa’s first Chief Justice Ismail Mahomed in the landmark 1995 judgment that ended the death penalty.
Mahomed wrote: “The South African Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution.
“The contrast between the past, which it repudiates, and the future to which it seeks to commit the nation, is stark and dramatic.”
More than 20 years later, in another landmark judgment, current Chief Justice Mogoeng Mogoeng spoke of the duties of office holders towards the Constitution that they take an oath to uphold when they assume their responsibilities.
Writing the unanimous decision in the Nkandla judgment, Mogoeng said that “the president is a constitutional being”.
“In the Constitution the president exists, moves and has his being. Virtually all his obligations are constitutional in nature because they have their origin, in some way, in the Constitution.”
Zuma seemed to share this sentiment about constitutionalism when he delivered his inauguration speech after he was sworn in for his first term in May 2009.
“We must strengthen the democratic institutions of state, and continually enhance their capacity to serve the people. We must safeguard the independence and integrity of those institutions tasked with the defence of democracy, and that must act as a check on the abuse of power,” Zuma said back then.
What Mahomed was saying in that judgment was that the constitutional era that South Africa entered in 1994 was one that prided itself on decency and progress. The Constitution was to be the lodestar.
The Constitutional Court’s Nkandla judgment reminded us of the lofty, yet achievable, ideals that the Constitution strives for.
THE PATH TO A FAILED STATE
In what was a grave moment this week, Zuma gave a “ringing rejection” to this path when he declared that he was going to defy an order of the Constitutional Court for him to appear before the Zondo commission of inquiry into state capture.
The erstwhile head of state said he was “left with no other alternative but to be defiant against injustice as I did against the apartheid government”, and that he was “prepared to go to prison” if his defiance of the Constitution resulted in this. In doing so, Zuma repudiated his own pledge to “safeguard the independence and integrity of democratic institutions”, of which the Constitutional Court is the apex.
We should not be entirely surprised by Zuma’s stance as he is anti-democratic and anti-constitutional. He does not care that, by virtue of having taken the oath of office – twice in his case – he remains a “constitutional being” for life.
Zuma is in the mould of the hard men of politics, the right-wing populists who have risen to power around the world over the past decade. These men, like Zuma, would care little about bringing the house down if it meant their own selfish ends are met.
What should concern us more is the role of the governing ANC, which is a willing accessory to this assault on our constitutional order. After the party failed to condemn the former leader of the party, who remains an ex-officio member of its national executive committee (NEC), its secretary-general, Ace Magashule, came to his defence.
The second most powerful official in the party went as far as saying that the Constitution is not sacrosanct, effectively declaring that adhering to the highest law of the land is optional.
Some, like the Umkhonto weSizwe Military Veterans Association’s Kebby Maphatsoe, have warned the country to prepare for the worst should Zuma be arrested. The ANC said it would discuss the matter at next week’s NEC meeting and come up with a position on Zuma’s defiance.
A position on what, exactly? Whether it is permissible for some to break the law and violate the Constitution based on one’s place in society’s hierarchy? Attacking the judiciary and openly defying the law are the ingredients of failed states.
Do we want to go down that road with eyes wide open?