Mcebisi Ndletyana | Zuma vs the law: A necessary confrontation

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Former president Jacob Zuma appears at the Zondo commission.
Former president Jacob Zuma appears at the Zondo commission.
PHOTO: Sharon Seretlo, Gallo Images

Jacob Zuma's defiance of the Zondo Commission and belligerence towards the judiciary have brought the republic exactly to where his predecessors had stayed clear, writes Mcebisi Ndletyana.


Nilidini lethu! thundered SEK Mqhayi, South Africa's first poet laureate.

Mqhayi was writing in 1917, hailing the victims of the Mendi shipwreck as a national sacrifice in pursuit of justice. Drowning en route from the United Kingdom to France, the volunteers had participated in World War 1, alongside British allies against fascism, and in defence of democracy, of which they were even denied back home.

In the subsequent years, many more who perished for the cause of freedom would be remembered in a similarly salutary fashion, Amadela kufa!

The memory of their death both affirmed the indivisibility of freedom, and inspired others also to risk death rather than endure the life of servitude. Those who escaped death would go on to lead a life full of popular adoration. 

READ | Mcebisi Ndletyana: Defying Zondo makes Zuma unworthy of former president status

Freedom fighters constitute heroic leadership. Their followers look up to them as extraordinary beings, worshipping them. That is why heroic leaders have monuments and statues built in their likeness, to legitimise newly formed nation-states.

Their following is a testimony of the popular resonance of what they stand for. Because their activism was driven by a set of values – i.e. equality, tolerance, and human decency - they come to personify it. Heroes are representative figures. Their statues have evocative powers.

On seeing them, ordinary people are reminded of the values these iconic figures stand for. This generates legitimacy for public institutions that uphold values epitomised by heroic leaders.     

Imposing punishment on iconic figures

The problem is when public institutions and the law have to impose punishment on the iconic figures.

Followers are forced to choose between the two.

Nelson Mandela was always cognisant of the potential for such tension.

He avoided his followers having to make that choice, opting to subject himself to the supremacy of the rule of law and courts instead. That is what he did when Louis Luyt, then boss of South African rugby, hauled him before the courts, alleging that his authorising of a probe into rugby was ill-considered.

Mandela's lawyers counselled that he didn't have to appear in court, but could simply submit an affidavit. He refused and insisted on appearing to demonstrate that he, too, the globally revered iconic figure, was subject to the law. That symbolism of him standing in the dock reaffirmed one of the values his heroic figure personified – the absolute supremacy of the law, above anyone regardless of stature.

Mandela's successors  - Thabo Mbeki and Kgalema Motlanthe - would also show absolute deference to the judiciary, even though they did not always agree with its rulings.

At the occasion marking of the changing of the guard at the Constitutional Court on 10 June 2005 – with the retirement of Arthur Chaskalson and the elevation of Pius Langa to the helm, with Dikgang Moseneke as his deputy – Mbeki aligned himself to the words of Canadian jurist, Rosalie Abella:

"… the judiciary has a different relationship with the public. It is accountable less to the to the public’s opinions and more to the public interest. This means that the occasional judgment will collide with some public expectations, which will, inevitably, create controversy. But judgments that are controversial are not thereby illegitimate or undemocratic, they are, in fact, democracy at work"

Jacob Zuma's defiance of the Zondo Commission and belligerence towards the judiciary have brought the republic exactly to where his predecessors had stayed clear.

Deputy Chief Justice Raymond Zondo intends on approaching the Constitutional Court to hand down a prison sentence for Zuma.

Defying a commission is also punishable by a fine, but Zondo is going for Zuma's imprisonment.

Kebby Maphatsoe has organised what he purports to be veterans of the long-disbanded military wing of the ANC, uMkhonto weSizwe. Some of whom appear to have been born in the late 1980s. This has understandably raised the spectre of violence. As a result, the South African Council of Churches (SACC) has warned:

"Every effort must be made to prevent a course of action that may cause people to die for the sake of one very important man."
    

Just how big a mob can Zuma mobilise against the country's law enforcement?

His popularity saw him to the helm of the party in 2007 and he was re-elected in 2012.

It's not far-fetched that Zuma could still be popular. But, that popularity still needs to be qualified. It was largely among ANC members who'd managed to make it to both conferences, and was largely confined to KwaZulu-Natal. One can never trust on ANC membership being authentic. There's a lot of machination to either cook up one's support, or suppress the opponent's.

Motlanthe once dismissed ANC branches as "bogus". And some of those who supported Zuma did so to snub Mbeki. Their support for Zuma was not approval for him, but was a rejection of Mbeki. Some disliked Mbeki's leadership style and others were resentful that he had not facilitated their employment or simply ignored them. There are always losers and winners with every presidency.

Zuma's popularity in KZN gave the party cause for celebration.

It narrowed the gap between itself and the Inkatha Freedom Party in the 1999 election, and eventually became the biggest party from 2004. Growth in KZN, however, happened at the expense of the party's overall national support. It shrunk in other parts of the country.

Zuma inherited a party with more than 66% support, and left it at 62%, with the 2016 local elections results showing that it was heading further down - to the lower 50s - and possibly below 50%. His misdemeanours, beginning with illegal use of public funds to build his village home, gained him infamy.

Conditions that elevated Zuma to prominence in the early- to mid-2000s no longer exist.

Allegations of victimisation

Allegations of victimisation on account of his ethnicity had earned him sympathy in his home province. Some ANC leaders had suddenly uncovered emails that supposedly showed Mbeki and his allies, driven by ethnic prejudice, were plotting to eliminate Zuma from the leadership race.

The emails were false, but proved convenient as a basis of an imaginary plot. Claims of a conspiracy are back again, but lack a convenient prop.

Accusing Zondo of hatred just doesn't stick. A native of the KZN-based rural town of Ixopo, from a poor family of nine-siblings, Zondo has been a picture of diligence, forbearance and decorum.

Most close followers of the commission's proceedings even got upset at some point, thinking that Zondo was bending over to appease Zuma. When Zondo finally approached the Constitutional Court last December, judges expressed surprised that he hadn't come earlier and reprimanded him for indulging Zuma's insolence.   

Zuma forced Zondo into making the decision to seek his punishment.

READ | Karyn Maughan: Jail time for Zuma? The Zondo commission's response to the defiant former president

He has not only repeatedly ignored the commission's summons, but has also been repulsively contemptuous towards the judiciary.

He doesn't recognise the country's jurisprudence, and mocks it instead as "their laws".

Punishing Zuma won't be a spiteful act, but simply an affirmation of what this country is: a constitutional democracy where the rule of law is supreme. Not punishing him, simply means we are fake.

The ANC doesn't find Zuma's defiance of its instructions, for all members appear before the commission, punishable - instead it makes excuses for him. The country can't follow that standard, it is just too low.

Cyril Ramaphosa may just have been correct in likening the country to a fynbos. Though fire threatens to make it extinct, it is actually reinvigorating. The plant grows "back even stronger than before".

Democracy doesn't presuppose absence of conflict. Like fire to the fynbos, conflicts can fortify democracies. This confrontation, Zuma versus the law, is necessary for our renewal.     

- Mcebisi Ndletyana is associate professor of politics at the University Johannesburg. He is the author of 'Anatomy of the ANC in Power: Insights from Port Elizabeth, 1990 – 2019' (HSRC Press, 2020).


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