No justice in jailing Zuma
Constitutional Court strayed from normal procedure to imprison the former president
THE Constitutional Court ruled that former president Jacob Zuma must be imprisoned for his refusal to appear before the commission of inquiry he reluctantly established as president to investigate state capture.
When delivering the judgment on behalf of seven of the nine Constitutional Court judges, Sisi Khampepe said, “the matter is self-evidently extraordinary. It is thus in the interests of justice to depart from ordinary procedures.
“Never before has this court’s authority and legitimacy been subjected to the kinds of attacks that Mr Zuma has elected to launch against it and its members.”
She further said: “Not only is Mr Zuma’s behaviour so outlandish as to warrant a disposal of ordinary procedure, but it is becoming increasingly evident that the damage being caused by his ongoing assaults on the integrity of the judicial process cannot be cured by an order down the line. It must be stopped now.”
It is therefore on record that South Africa’s apex court departed from normal procedure to imprison the former president for 15 months. Tellingly, the departure from normal procedure included the disregard of the applicable legislation on contempt of courts which prescribes imprisonment not exceeding six months.
Imprisonment is universally accepted as a mechanism and method of justice, yet a question remains as to what form of justice is the government seeking through its imprisonment of the country’s former head of state.
South Africa’s refusal to prosecute apartheid murderers in the early and mid-1990s was premised on the supposition that such will undermine peace which was essential for the transition.
Former president Thabo Mbeki said if the democratic government would have been asked to arrest FW de Klerk, they would have said no, because he was needed for transition to happen.
In the same interview Mbeki fervently argued that justice could not trump peace when justifying that the intention to jail former president of Sudan should be held in abeyance. It is therefore not wise to pursue the imprisonment route and option even when such threatens peace.
This does not mean that leaders should not be held accountable for misdemeanours and wrongdoing, yet the question remains as to whether imprisonment is the most useful mechanism to hold leaders accountable.
There are misdemeanours that defined Zuma when he was president, including his militarisation and securitisation of the country’s legislative arm, Parliament, wherein the police would be instructed to evict and physically assault members of the EFF .
The direction he was taking during his Presidency was certainly not safe for a democratic dispensation. The EFF fought a fervent and relentless battle against Zuma and even allied with improbable, at times reactionary forces, in attempts to remove him as president.
Like Nelson Mandela, Mbeki, Kgalema Motlanthe and the entire ANC, Zuma is not a revolutionary and has never stood firm on the critical revolutionary changes he was supposed to uphold as a president of the ANC and country. When he was president, the ANC voted against the EFF motion for expropriation of land without compensation in 2017.
The ANC under Zuma’s leadership voted against provision of fee-free education for all. Zuma’s ANC voted against all revolutionary motions brought by the EFF.
It was on that basis that we collectively mobilised for his removal as president and we succeeded in doing so. Towards his exit, Zuma correctly announced fee-free education.
Despite these misgivings and reactionary postures, jailing Zuma is out of order and completely wrong. The historical and current reality is that prison has almost always been used as an instrument to silence and oppress black people’s dissenting voices.
We in the EFF fought for the establishment of the Commission of Inquiry into State Capture because allegations made by senior government politicians, particularly Pravin Gordhan that more than R400 billion was lost due to state capture. There have been several witnesses in the commission thus far, and not one has illustrated how the R400bn was lost or transferred to bank accounts in Dubai.
The people are correctly concerned about the extraordinary imprisonment of Zuma because imprisonment has historically been used by colonial invaders to punish and intimidate black people. When Autshumao in the 17th century fought against the Dutch for the return of the livestock they had stolen, he was imprisoned.
When Nelson Mandela fought against apartheid, he was jailed. When Robert Sobukwe mobilised against the system, he was imprisoned. When Steve Biko challenged the system, he was imprisoned and killed by the regime. When Solomon Mahlangu confronted the regime, he was imprisoned and executed.
Zuma doesn’t fall into this category of leaders and freedom fighters, but why imprison him for refusing to appear before a judge he does not trust? South Africa renamed its prison facilities to Correctional Services, but what is corrective in jailing a 79-yearold former president who otherwise says he will appear in a commission of inquiry if it is not presided by a person he perceives as biased? What precedence are we setting for our country?
Cyril Ramaphosa must use whatever form of legislatively permissible mechanism he has to release Zuma from prison.