UNTANGLING ZUMA’S WEB

As the election nears, the former president’s MK Party is tied up in a legal tussle with the IEC that relates to the separation of powers between the executive and judiciary

The separation of powers between the judiciary and the executive is set to come under scrutiny in the appeal by the Electoral Commission of South Africa (IEC) to the Constitutional

Court on former president Jacob Zuma’s eligibility to stand as an MP.

IEC chair Mosotho Moepya argues in an affidavit that the electoral court erred when it overturned the commission’s decision to bar Zuma from standing in the May 29 poll, and that the commission had acted within its powers to do so. At the same time, he swept aside allegations of bias levelled at the commission by Zuma’s MK Party.

While Zuma has sought to cast the IEC’s case as politicking, the commission is adamant that it requires clarity on the matter and urgently so to protect the integrity of the electoral process.

The nonprofit Council for the Advancement of the South African Constitution (Casac) is set to join the case as a friend of the court, and the separation of powers will form a key prong of arguments on the matter.

The MK Party burst onto the political scene in December after Zuma announced he would be voting for it instead of the ANC come May 29. But the noise of its arrival may belie its influence in the electoral landscape.

Some polls deemed questionable, due to the polling organisations’ links to the DA claim the MK Party could garner as much as 13% of the national vote. But this is unlikely: by-elections contested by the party so far have seen it emerge as at best the third-largest party in KwaZulu-Natal and to hardly feature elsewhere. It also relies solely on Zuma as the face of its campaign, with no other well-known or prominent political figures in its leadership. So, while it may inflict some damage on the ANC in KZN, it is likely to feature only marginally in national politics after the May 29 election.

Thus far, it has waged a negative campaign, seeking to cast aspersions on crucial state institutions including the IEC and the judiciary, promising violence and mayhem should it fail to get its way.

It’s also been largely tied up in legal action since its launch — the case against the IEC being the latest iteration.

The IEC is turning to the Constitutional Court to determine whether

Zuma’s 2021 conviction and 15-month sentence for contempt of court fits the bill for exemption outlined in section 47(1)(e) of the constitution. The section prohibits anyone sentenced to more than 12 months without the option of a fine from entering parliament as a legislator.

It’s fitting that the commission is returning to the apex court, given that it was the court that handed down Zuma’s conviction in the first place.

While the court sentenced Zuma to 15 months in prison in 2021, he was released on medical parole after just two months. That decision was taken by his key ally Arthur Fraser, who was, at the time, the correctional services commissioner. Zuma’s release was subsequently overturned by the high court and an appeal to the Supreme Court of Appeal was dismissed.

Zuma was ordered to return to prison in August last year.

On the same day, President Cyril Ramaphosa issued a remission of sentence to ease overcrowding in prisons; Zuma was among the more than 15,000 prisoners released as part of the remission.

Casac executive director Lawson Naidoo says the council has taken a keen interest in the case due to its importance in maintaining the separation of powers between the judiciary and the executive.

“This is squarely an issue dealing with the separation of powers. An executive decision (the remission) cannot override a judicial one (the sentence),” Naidoo says.

He also says the IEC is firmly within its rights to approach the highest court on the matter. There’s another crucial issue

— one raised by the MK Party — that relates to the powers of the IEC.

What has complicated the case is that the electoral court has not yet released the reasoning behind its decision to overturn the IEC’s move to bar Zuma from appearing on the MK Party list. But Lawson says this is not an impediment to the IEC approaching the highest court for relief and clarity.

Moepya, in his affidavit to the Constitutional Court, is adamant that the commission is within its powers to uphold an objection to Zuma standing as an MP. In the case before the electoral court, the MK Party argued that the IEC had overstepped its mark and only the legislature, in the form of the National Assembly, could prevent Zuma from standing as an MP.

Moepya says in his affidavit that this claim is wrong for several reasons: the IEC is empowered through section 30 of the Electoral Act to determine if a candidate can stand in an election and the pre-election selection process (run by the IEC) is the only opportunity to determine the eligibility of a candidate. The constitution leaves no room for the National Assembly to determine, after an election, if candidates do not qualify to become MPs.

Moepya also addresses the remission of sentence Zuma received, saying the MK Party’s argument undermines the separation of powers.

“It is the role of the judiciary to decide guilt through a conviction and then impose a sentence ... it is the conviction and sentence that matters for section 47(1)(e) and that fact cannot be altered by executive fiat. On these facts the president did not purport to hold that no sentence had been imposed on Zuma, nor is this the natural effect of the remission,” he says.

MK has blamed “Ramaphosa and his financial backers, white monopoly capital” for pressuring the IEC to appeal the matter to the highest court. It said in a statement that a priority for the party after elections would be to “restore the dignity and independence of the judiciary, and that of the IEC”. It also argued that chief justice Raymond Zondo and most justices on the Constitutional Court bench would be “conflicted” in this matter. This is probably a reference to the court handing down the 2021 judgment against Zuma for contempt after he failed to appear before the state capture commission of inquiry, chaired by Zondo, despite being subpoenaed to do so. In that judgment the court found that Zuma “publicly vilified the judiciary, wilfully undermined the constitutional order, insulted the constitutional dispensation and when confronted with the consequences of his actions, attempted to cry for public sympathy”.

Naidoo says Zuma’s “scorched earth” policy is continuing through his MK

Party, where he attacks institutions he does not agree with. Given the threats the party has levelled against the IEC in recent months, it is clear that his strategy is to cast doubt on the outcome of the election, he adds.

MK Party member and Zuma backer Visvin Reddy has already been charged and appeared in court on charges of inciting public violence after he threatened riots and a disruption to the election should MK’s political ambitions be thwarted.

The IEC affidavit deals with all aspects of the party’s appeal of its decision due to the fact that the electoral court has not yet released the reasons for its setting aside of the commission’s decision.

Addressing the matter of whether he regrets granting Zuma a remission of sentence, President Cyril Ramaphosa said on Saturday that the release of nonviolent prisoners last year was not about Zuma.

“So when I took the decision, it was not specifically aimed at former president Jacob Zuma,” he said. “It was a broad decision that affected many other people who needed a remission. And it was being done so that we could reduce the numbers of people in our prisons. Because they are burgeoning at the seams. There are too many people in our prisons. So I don’t regret that decision.”

This is squarely an issue dealing with the separation of powers. An executive decision (the remission) cannot override a judicial one (the sentence)

Lawson Naidoo

Meanwhile, as the MK Party continues to dominate headlines due to Zuma’s many legal tussles, the party itself is racked by infighting and money woes.

The former president this week released a video appealing for funding from supporters. A rally to be held in the Eastern Cape over the weekend and expected to be addressed by Zuma was abandoned at the last minute due to poor attendance fewer than 100 people pitched up. Speaking at a funeral later, Zuma said the shelving of the event was due to “internal challenges” the party was facing in the province.

While Zuma and his party may help answer crucial questions for the IEC and the interpretation of the constitution regarding the eligibility of former convicts to stand for parliament, its continued relevance after the May 29 election will largely be up to voters.

Thus far, there’s little tangible evidence that the party will post an impressive showing. It may well end up much the same as Zuma’s nine years in office: a cacophony of sound, fury and destruction, with marginal electoral impact.