So the African National Congress has won another large majority and Jacob Zuma has obtained the prize he so coveted. Amid the general relief that an anxious wait is over, however, it is important to recall that the victory came at a great social and political cost, and that portents for constitutional democracy are no less worrying now than they were a fortnight ago.
Within a week of the NPA’s announcement that it would not prosecute him, Zuma let the constitutional cat out of the political bag; the Constitutional Court judges acted like gods, were unaccountable (presumably to the ANC) and the Judicial Service Commission (JSC) should be asked to advise about this problem. Read without political spin by Mathews Phosa, this meant that, at some time in the future, the JSC would be asked to recommend changes to the judicial power of constitutional review. Phosa tried hard to assuage the worries that these revealing remarks provoked, not least in the business community, to which he is emissary in chief.
The problem, however, goes beyond one illuminating speech. The Scorpions are no more and the National Prosecuting Authority, which was partly corrupted by Thabo Mbeki’s administration, is now a gutted institution, sorely lacking legitimacy. The situation will be compounded if another ANC politician is appointed as its head.
The courts, meanwhile, have been excoriated almost every time a decision against Zuma is taken.
Supporters of the president-elect compete for fiction prizes in op-eds and speeches insisting that the NPA decision exonerates him entirely and confirms that the charges were cooked-up to promote a political agenda, but there is still no explanation as to how the taped conversations landed in the hands of the Zuma defence team. While this column does not think that a defence attorney is debarred from using such material, acting as he or she must in the best interests of the client, the exploitation of state intelligence sources involved raises further questions about the criminal justice process.
To point that out is not to exculpate anyone who sought to promote this prosecution for political ends. Indeed, the point is that the sorry State versus Zuma saga and those involved in it from the Mbeki and Zuma camps have the dust of destruction on their hands.
There is now further evidence from the JSC hearing regarding the conduct of Western Cape Judge President John Hlophe. Could it be true Judge Hlophe had a mandate to persuade judges to find for Zuma? That disturbing question waits determination as does the rumour, widespread in legal circles, that Judge Hlophe remains well positioned to take over as Chief Justice after the incumbent, Pius Langa, retires.
South Africa chose a constitutional democracy as its model of government when the electorate endorsed the work of Codesa 15 years ago. That choice followed upon the principles of the Freedom Charter — that each person in this country enjoyed inalienable rights, that government was accountable to the people it was supposed to serve and that a social democratic model of government would be the best road to travel if the country was to become a non-racial and non-sexist democracy.
It is to the eternal credit of the ANC that the Freedom Charter was translated, in effect, into the 1996 Constitution.
Obviously once civil, political, social and economic rights became inalienable and a principle of government accountability was also enshrined, the courts were going to play a major role in policing the new arrangement. That is why the constitutional compact created a new court — the Constitutional Court.
Within 15 years, this court has produced remarkable results: the landless and homeless can no longer be ignored or moved to the open veld without demure, HIV/Aids patients are no longer voiceless, gender equality is becoming a reality, homophobia is no longer part of the legal landscape and Parliament must consult before it passes legislation. These are monumental steps towards the dream of the Freedom Charter.
But all this achievement stands imperilled by the politics of the present. For the past five years, at least, law appears to have been viewed by those in power as an instrument to perpetuate their rule; now it seems that, when convenient, the powerful are simply placed above the law. The new legal norm is now the spirit of the people as interpreted by certain politicians and not through the Constitution. Is there a prospect that all can still be rescued? Watch the reaction to the kind of arguments articulated in this column and by many other critical observers to know that hope is fading fast.