Khampepe: A hero across both sides of the Limpopo

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SOME people are born great, some achieve greatness and others have greatness thrust upon them,” William Shakespeare.

Justice Sisi Khampepe is a unique character in both South Africa and Zimbabwe. She has gained greatness and rebuke in equal measure from political players and the jury is still out in on whether she achieved greatness or had it thrust upon her in the last two decades.

Khampepe, the Acting Deputy Chief Justice of the Constitutional Court of South Africa, this week did the unprecedent when she jailed former President Jacob Zuma for 15 months on contempt of court charges.

She justified the extraordinary ruling in her majority judgment by saying: “The vigour with which Mr Zuma is peddling his disdain of this court and the judicial process carries the further risk that he will inspire or incite others to similarly defy this court, the judicial process and the rule of law.”

In South African law, a case of contempt is established if three things are proven: (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order.

It is common cause that Zuma is guilty of the charge and he deliberate did not appear before the Zondo Commission or the ConCourt when asked to and orders had been handed down to that effect.

Khampepe’s ruling will be a matter of scholarly debates for the coming years. The question that she made such an important decision in her final six months in office means she is leaving with a bang. However, Khampepe is not new to handling politically difficult cases.

Nearly two decades ago, in 2002, she was on a special Judicial Observer Mission to Zimbabwe’s presidential elections sent by then South African President Thabo Mbeki.

Khampepe was then a High Court judge in Johannesburg and was working with Justice Dikgang Masoneke of the Pretoria High Court.

The observer mission was to report to Mbeki on whether in the period before, during and shortly after the elections: 1. The Constitution, electoral laws and any other laws of Zimbabwe relevant to the elections (legislative framework) can ensure credible or substantially free and fair elections; and 2. The elections have been conducted in substantial compliance with the legislative framework.

The mission produced what became known as Khampepe Report, a report that was too hot to handle that Mbeki and his successors — Kgalema Mothlante and Zuma — for six years fought hard to prevent it being put in the public domain.

The report in its conclusion reads: “However, having regard to all the circumstances, and in particular the cumulative substantial departures from international standards of free and fair elections found in Zimbabwe during the pre-election period, these elections, in our view, cannot be considered to be free and fair.”

The report is a complete departure from all the other regional observer missions that endorsed the bloody 2002 presidential elections. Zanu PF and President Robert Mugabe played dirty and won unfairly.

Khampepe and Dikgang were very candid that Mugabe used to change the law to his advantage even in the middle of the election period. On voter registration, it said: “In breach of the law, the Registrar-General continued to register voters amid protests by election support groups, the media and opposition parties. Moreover, no public notice was given that any person who wishes to register may do so. On March 3 2002 the President issued the Electoral Act (Modification) Notice, 2002 in terms of section 158 of the Act, in order to cure this illegality.”

It further noted: “Despite the law, no final voters roll were available to the public or party polling agents or observer missions up to virtually the point of voting.”

The report also looked into political party and election funding. It highlighted how Zanu PF uses State resources to further its electoral objectives. It also discovered that the opposition received foreign funding.

“On the other hand, the MDC received substantial from within its membership and other international donors because of which it was able to conduct an effective campaign for the presidency. We are drawing attention to these facts only to illustrate the role funding plays in the determination of political campaigns in a democracy,” the report said.

The above has been a sore point for the opposition and often earning it the tag that is a Western puppet.

The mission further situated the importance of liberalising the airwaves, particularly for the rural communities who in Zimbabwe constitute 67% of the electorate.

“It is well accepted that radio is traditionally the best means of communication in black communities in rural areas. ZBC controls four radio stations. It is inescapable that over these radio stations, Zanu PF election campaign received more prominence than campaigns of the other political parties,” it noted.

It is interesting to note how the above finding in the report was buttressed 17 years later in 2019 in Veritas v ZBC. Justice Mafusire of the High Court ruled that ZBC was not operating as a public broadcaster and was partisan especially during the election periods.

It is not inescapable that Khampepe is at the right place at the right time and more often than not makes the right call. In Zimbabwe, she will be remembered for telling the world that Zanu PF stole elections while in South Africa remembered as the judge who incarcerated Zuma.

Khampepe has, therefore, cemented her position across the Limpopo as someone who served true to the law and had her allegiance to the law and not personalities.