By Peter SAKWE MASUMBE, (PhD) (Download pdf version)
Zuma Goes to Jail: Implications for Rule of Law, Democracy, and Governance in South Africa
There is a great silver lining in the quest for popular confidence in applying the rule of law, democracy, and governance processes in Africa’s politico-economic and socio-cultural landscapes, despite several setbacks occurring in several African countries today. In South Africa, the Constitutional Court recently found former president Zuma guilty of contempt of court and landed him a 15-month prison sentence, which is irrefutably a historic judgment in the annals of African politics. This judgment is loaded with several lawful and legitimate inferences for the continent’s democracies, rules of law, governances, and leadership.
But can this judgment deter other African political leaders and apparent heavyweights in the governing processes from impunity? No matter the answer to this question, this judgment serves to remind Africans that human development in terms of applying democratic principles in the continent is gaining ground through the judiciary. Therefore, the African Union, with its Malabo’s Protocol and its envisaged creation of an African Court of Justice, reminiscence of the International Court of Justice, should re-examine itself, especially in the Protocol’s clause, which provides immunity to serving or former heads of state.
This historical judgment pronounced by Acting Chief Justice Sisi Khampepe, signifies, in his words, “…A mission to share knowledge, rules of governance and democracy, in a lofty and lonely work of the judiciary, as an independent arm of government, impervious to public commentaries, and political rhetoric, to uphold and apply the Constitution and the law, no matter whose guts it is.” Ostensibly, in Africa, hardly has a court lower or higher, passed a safeguarding sentence, still less on a former president – civilian or military; whose governance was serenely investigated and found wanting. Necessarily, this judgment is unique, which an African court had to make, as deterrence to other African leaders.
Substantive Issues for Policy Implications in Africa’s Democracies
The first issue which brings great solace into governance in the continent is the capacity of an African judiciary and the none-interference of an African ruling executive to bring a former head of state to an open judgment in an African court. Or is Ramaphosa merely being vindictive or neutrally transparent and letting accountability
and the rule of law take their courses in South Africa’s governing processes with lessons offered to other African countries.
Cuing from the character of party politics in developed societies and going by inter-political party relations in South Africa, as incarnated by the ruling ANC, the electorate had an interest in seeing Zuma give evidence at the Commission of Inquiry; and respond to allegations of corruption leveled against him. May I recall that, on the ticket of the ANC, Zuma took the presidency in May 2009 and left power after Ramaphosa won him in a transparent, free and fair inter-party election, which brought Ramaphosa to lead the ruling African National Congress in December 2017? Another implication is the political will of the Constitutional Court to accept jurisdiction in the case brought against Zuma, is that Zuma, given the underdevelopment inundated insinuations of African electorates, and irrespective of Zuma’s status as a former head of state. Given Zuma intransigence at the Commission of Inquiry, Justice Klampepe says:
“I do not think this Court should be so naïve as to hope for Zuma’s compliance with the court’s order. Indeed, it defies logic to believe that a suspended sentence, which affords Mr. Zuma the option to attend, would have any effect other than to prolong his defiance and to signal dangerously that impunity is to be enjoyed by those who defy court orders.”
Thus, in a democratic culture, where the rule of law prevails, the court demonstrated readiness, cleverness, and exhaustiveness to Zuma’s tactics over the years; therefore, the majority of the judges held that Zuma’s public outburst before and after the contempt proceedings had been an attacked against the honesty and integrity of the judges of the Constitutional Court and the rule of law. Yet another substantive policy implication is the court’s decision to pass coercive or punitive sentence against Mr. Zuma, whereby the former would have been a suspended sentence, provided that Zuma appeared before the Zondo Commission, while the latter would have simply been punishment for the contempt of court. In pronouncing the verdict against the former president, the majority judgment referred lengthily to the “calculated and insidious” attacks on the rule of law by Zuma. Additionally, the last section of Khampepe’s ruling was far-reaching, as it reads:
“Quantifying Mr. Zuma’s egregious conduct is an impossible task. So, I am compelled to ask the question: what will it take for the punishment imposed on Mr. Zuma to vindicate this Court’s authority and the rule of law? In other words, the focus must be on what kind of sentence will demonstrate that orders made by a court must be obeyed and, to Mr. Zuma, that his contempt and contumacy are rebukable in the strongest sense. With this in mind then, I order an unsuspended sentence of imprisonment of 15 months. I do so in the knowledge that this cannot properly capture the damage that Mr. Zuma has done to the dignity and integrity of the judicial system of a democratic and constitutional nation. He owes this sentence in respect of violating not only this Court, nor even just the sanctity of the Judiciary, but to the nation he once promised to lead, and to the Constitution he once vowed to uphold.”
As in Uhuru Kenyatta’s case, whereby the Kenyan Supreme annulled and ordered a fresh presidential election, Zuma’s verdict is a fervent and eloquent defense of the Constitution and the rule of law in Africa’s political landscapes. However, without a doubt, the defeated always cry foul; hence, after the verdict, a Zuma Foundation’s spokesperson vituperated by calling the verdict emotional instead of the rule of law; nevertheless, the lesson has been enacted.