There are political circumstances surrounding the enactment of our Constitution which have, in part, led us to the situation we now face in the matter between Jacob Zuma and Raymond Zondo, writes Nicole Fritz.
As Joe Biden readies to assume the Presidency of the United States, there is increased speculation as to whether his administration will be supportive of any prosecution of Donald Trump once he's vacated the White House.
There's ample reason for his administration to discourage any such prosecution: you can be sure Trump and his base will call them out as witch-hunts, the airtime required to counter such accusations will only divert from substantive policy initiatives Biden will want to champion and efforts at prosecution will likely only further inflame divisions and polarisation within America.
But still, as one commentator has noted, the only way to truly be rid of Trump is for him to be disgraced.
In short, if America is to move on, a bright line must be drawn between the misdeeds of Trump and the new administration.
Parallels to South Africa
Imperfect though the comparison may be, it's hard not to see the parallels with what is happening here. As is now well known, former president Zuma absconded from the state capture inquiry last Thursday. As brazen acts of defiance of and contempt for our constitutional democracy, its systems and laws go, it was a pretty spectacular showing.
Let's not forget that it was actually Zuma who established the commission. But perhaps his thinking had been that while it might do for us "little people", it really would not do for him.
Deputy Chief Justice Zondo appreciated the magnitude of the challenge - not only to his authority and to that of the commission, but to our constitutional substructure. After all, were such a categorical demonstration that the powerful are entitled to enjoy an impunity that the rest of us ordinary South Africans do not be allowed to stand, we could all simply call it quits on the Constitution.
Left with no choice, Zondo has thrown the book at Zuma - issuing fresh summons, laying a criminal complaint and approaching the Constitutional Court for an order enforcing the original summons and requiring Zuma to attend the commission unless excused.
FW de Klerk Foundation
Quick to add its voice in support of Zondo was the FW de Klerk Foundation, opining that Zuma might run from the commission, but he could not hide. That contribution might seem to warrant little notice, save for observing that given FW de Klerk's own relationship with various commissions and fact-finding exercises, it's a bit like having the hyena say of the jackal: he really is such a scavenger.
But that contribution should also flag a more fundamental concern. FW de Klerk presided over a system that didn't just disregard, but directly sought to subvert the basic essentials of what we now take to be our constitutional legal system: the requirements of impartiality, that law is applied without fear or favour, that all are equal before the law.
Our Constitution would seem to be that bright line between that past of illegality and a present of lawfulness, making it impermissible that a former president, like Zuma, or anyone really, should so explicitly flout the requirements of law. But our Constitution has also been required to lug around with it that unseemly, sordid past - coming into force only by allowing those guilty of the gravest illegality to go free.
Don't get me wrong. This isn't some relativist argument that because the Constitution permits, if only implicitly, that apartheid's leaders face no legal reckoning that we should then absolve all political leaders of the requirements of legal compliance. But we are naive if we don't confront the fact that the political circumstances of our Constitution's enactment, the example of that impunity which essentially continues undisturbed, doesn't serve as an inducement to others like Zuma to constantly push against any bright line.
And that it doesn't give his supporters reason to think he has cause to do so.
- Nicole Fritz is the CEO at Freedom Under Law.
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