Why Zuma cannot, and will not, go to prison

The narrative is clear and uncomplicated. By refusing to appear before the Zondo commission Jacob Zuma is trying to evade justice yet again, hoping to delay that inevitable day when he goes to prison. That’s the consensus, isn’t it? That Zuma must — and will — go to jail and serve a lengthy term?

It’s a logical idea. Somebody, we know, needs to be locked up. And since the Guptas are long gone and we can’t really recall the names and faces of the big auditors who assisted state capture, it has to be the one who has been left holding the bag. Zuma must be jailed.

It’s a comforting demand, perhaps even cathartic. But I’m not sure it’s useful, mostly because I think it’s fundamentally mistaken. Zuma won’t go to prison, at least not for a lengthy spell, because he can’t.

The first reason is the past. The decision in the early 1990s to give amnesty to apartheid’s ringleaders and many of its henchmen was sold as a pragmatic compromise, a way of ensuring a peaceful transition while securing important testimonies at the Truth & Reconciliation Commission. Today, as the Rainbow Nation curdles into the deep despondency of entrenched inequality, that compromise feels to many like a cynical concession.

Apartheid ’ s former victims have spent the last quarter-century watching its perpetrators die at home in their expensive beds, or, surreally, continue living entirely normal lives, even using their foundations to wag their fingers at the new government. It would be simply intolerable for millions of South Africans, whether they admire Zuma, to see a former struggle hero and ANC president jailed while the likes of FW de Klerk or Adriaan Vlok remain free.

The second reason Zuma can’t be jailed has to do with the future. When a country starts jailing former presidents for something as ubiquitous and relatively mundane as corruption, it sets an awkward precedent for current presidents. This is because current presidents understand that, unless they are the president of North Korea or Cameroon, they are just a few years away from becoming former presidents and being measured for an orange jumpsuit.

Now, I am not suggesting for a moment that President Cyril Ramaphosa has done anything that might warrant future prosecution, or that he’s told Zuma he will protect him. But the ANC has shown itself to be almost supernaturally reluctant to expose its elite members to any sort of consequences whatsoever, perhaps because it understands that once it starts prosecuting corrupt members all that will be left of the party will be 147 octogenarian stalwarts and a caterer who’s hanging around because he still hasn’t been paid.

In other words, I wouldn’t be terribly surprised if it has been made clear to Zuma, through unofficial channels and in euphemistic terms, that if he offers co-operation in certain matters, should the day ever come that he falls it will be onto a Lilo in the fire-pool at Nkandla.

On Monday, the Zondo commission announced it would ask the Constitutional Court to find Zuma in contempt, and that if such a ruling came down it would ask for him to serve time in prison rather than to pay a fine.

Social media bubbled and fizzed with celebrations and denunciations, ignoring the people who actually understand the law. People like Franny Rabkin, for example, who reminded us that jailing Zuma would require the commission to prove beyond a reasonable doubt that his “defiance” was “both willful and in bad faith”, which I assume would be a daunting task for a commission that has tended to cover a great deal of ground lightly.

For Zuma, however, a man who thrives on being seen by his flock as both a martyr and a winner, it is all gravy. To him, and to his followers who see the law as a hindrance to making a living, the Zondo commission isn’t a legal proceeding but an exhilarating stand-off between rival gangs; an opportunity to strut and pose, and above all to show your contempt to the other side and be adored — and rewarded — for it by your own.

By literally naming contempt in his application to the Constitutional Court Zondo will have driven Zuma ’ s gang even deeper into his thrall. Which, in the end, is exactly what he needs. Retiring to the country isn’t cheap, and if he’s not going to be jailed and have the state house and feed him, he’s going to need other people to do it for him.

This week, those people are getting dinner and a show. Well, a show: the dinners are all coming later, and they’re obviously not invited to those. But still. What a performance, eh?

By literally naming contempt in his application to the Constitutional Court Zondo will have driven Zuma’s gang even deeper into his thrall