ANALYSIS | The Constitutional Court needs to explain its latest decision on Zuma

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Former president Jacob Zuma.
Former president Jacob Zuma.
Gallo Images/Sowetan/Thulie Dlamini

The Constitutional Court's latest approach is Jacob Zuma may not be exemplary in a continent where government, despots, dictators, and law delinquents do not hesitate to obliterate or suspend justice and the rule of law, writes Omphemetse Sibanda.

A critical trajectory in South Africa's legal system's development is to improve standards of justice governance and the rule of law.

Moreover, a country battling with corruption and capture of state institutions cannot afford to renege on the great promise in section 9(1) of the Constitution that states that: "Everyone is equal before the law and has the right to equal protection and benefit of the law."

Yet, as reported by News24, former President Jacob Zuma has been edified by the Constitutional Court as being more equal than everyone when it comes to the administration of justice.

Zuma has been provided with the most elitist opportunity to give direction to the highest court in the law on what would he consider the appropriate sentence, should he be found guilty of contempt of the court.

What is behind the closed doors when the law does not rule?

What has happened since the Constitutional Court reserved judgment against Zuma for failing to appear before the Zondo Commission? Ordinary citizens would never get the opportunity to usurp the powers of the courts. Perhaps the justices will take us into their confidence when they announce their judgment, which by the look of things will not be coming soon, and explain the extraordinary step they have taken that essentially favours Zuma. Or perhaps deciding the former president's fate has been such a headache for them they have decided to capitulate the responsibility to dispense with cases before them judicially.

No matter which way you look at it, this is a textbook case of the judiciary allowing political meddling in the administration of justice.

In fact, it is one of the known signs of state capture and that the judiciary is in ICU, and a classic example of when there is no rule of law to speak of.

A study by the Open Society European Policy Institute, Transparency Serbia, and the Centre of Investigative Journalism of Serbia in 2018 titled When the Law Doesn't Rule, identifies seven ways political control is exerted over the judiciary, prosecution, and police in Serbia.

It examines how systemic weaknesses in the exercise of the rule of law is exploited. This includes limited accountability of judicial officers; the appointment of public prosecutors and court presidents on political grounds; an inordinate amount of discretion allowed to law enforcement when making investigation and prosecution decisions; inappropriate and partial briefing of the media; the misuse and manipulation of statistics; direct political influence on law enforcement; and deliberately dysfunctional criminal investigations in politically sensitive cases.   

Perfect gifts?

The Constitutional Court's latest soft-handling of the former president are perfect gifts for the review of the South African justice system's operation, particularly the legitimacy and impartiality of the judiciary.

The latest development, in my view, shows how vulnerable South Africa is to backsliding and moving away from the rule of law.

Some may argue that suddenly the Constitutional Court, in trying to find a silver bullet to the what I consider 'soft' constitutional crisis in the Zuma versus Zondo versus Constitutional Court debacle, decided to be a badly-needed ally of the former president.

Others may argue the Constitutional Court is saving the country from untold strife that may come as a result of holding Zuma accountable. But, we should not labour under any illusion of fortifying the rule of law and the South African justice system with this somewhat archaic approach of the Constitutional Court.

READ | Analysis: Angry Zuma launches extraordinary attack on courts, warns democracy could be reduced to ashes

It will, in the long-term, be a bedrock of a clique of rogue powerful elite and politicians as if South Africa is a mafia state where the judiciary is responsible to the politicians and the executive branch of government. If anyone had misgivings about our courts' independence from political influence, the Constitutional Court has just validated such misgiving.

Of course, there is ample evidence of the Constitutional Court playing a much-needed role in protecting rights in a series of decisions.

Some of its ground-breaking judgments have been hailed globally as setting the bar for adjudicating specific issues.

However, the court's latest approach may not be exemplary in a continent where government, despots, dictators and law delinquents do not hesitate to obliterate or suspend justice and the rule of law.

The independence and impartiality of the judiciary is a central tenet of our constitutional democracy. Any suspicion of political influence or political consideration in the adjudication process is not suitable for our democracy.

Judge for Yourself

My question in a previous News24 column remains relevant: Does the Constitutional Court have the fortitude to defend the rule of law and the judiciary?

In what is known as the Triad Factors in legal cycles, the then Appellate Division (now Supreme Court of Appeal) in S v Rabie held that the, "... punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances".

Perhaps our Apex court has been swayed by Rabie to involve the former president in deciding his own sentence and justify it as a plea in mitigation of sentence.

But there is a catch.

Judges engage with suits before them. There was never a point when the former president showed an appetite to be before the Constitutional Court which would justify this approach of why Zuma is being allowed to suggest his own punishment. Or perhaps this is a novel judicial sentencing approach, or another approach to a sentencing agreement.

I cannot get my head around what has happened when considering the bigger scheme of things such as dwindling respect of the country's courts following the great Zuma subpoena debate. Judge for yourself! What I know is that public confidence in the judiciary and sentencing are two sides of the same coin that must be closely protected from being corrupted and delegitimised.

- Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North-West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the former Vista University, Soweto Campus.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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