Former South African and ANC president, Jacob Zuma. (MKP/X)
Former president Jacob Zuma is expected to hear whether he is eligible to participate in this year’s general elections when the Electoral Court makes its ruling on Tuesday.
Zuma has challenged the Electoral Commission of South Africa’s (IEC) decision to remove him from its list of candidates eligible to contest the elections. The IEC has argued that Zuma’s 12-month jail sentence bars him from entering the race.
Now leading the uMkhonto weSizwe Partym, Zuma was imprisoned for 15 months after refusing an order by the apex court to testify at the State Capture commission.
Zuma’s application to the court hinged on then-correctional services commissioner Arthur Frazer and President Cyril Ramaphosa granting him three months remission into his jail term. Zuma received a presidential remission of sentence in August 2023.
Speaking to his supporters outside the electoral court on Tuesday, Zuma argued that he was eligible to become a state president because he had not completed his second, and final, term in office when the ANC recalled him.
“It’s in the constitution and how can they deny that? The Nkandla boy did not finish his two terms. If they say go back, no one will stop me. They forget that I didn’t finish my term, there’s still something I need to go and finish,” Zuma said.
“I was in government while I was a member of the ANC. I have never heard that when you leave the other party and you start yours, you don’t have a right to be president of it. There’s nothing that says that in the law,” he added.
In his court application to have the IEC ruling overturned, the former president’s lawyers said Zuma had not been criminally charged, did not undergo a trial and was not convicted of a criminal offence but was instead subjected to civil contempt proceedings. This meant that his removal from the list based on a criminal conviction was improper.
The lawyers said that the IEC had also failed to take into consideration Zuma’s remission of sentence, in terms of which he served only three months after being released on medical parole in September 2021.
Zuma’s lawyer advocate Dali Mpofu SC argued that the decision by the IEC to remove his client would be an infringement of his rights and would deprive uMkhonto weSizwe Party supporters of voting for the candidate of their choice.
“We are dealing with the rights of former president Zuma which have been infringed. Section 19 3b says every citizen has a right to stand for political office and if elected to hold political office,” Mpofu said.
“We find that the attitude of the IEC in this matter has been ‘let’s see where we can catch him and when we do catch him, let’s make sure he doesn’t come out alive’. That cannot be the attitude of a South African institution, let alone an independent institution whose job is to ensure all our section 19 rights are realised.”
The IEC has argued that grounds for disqualification are when a person was convicted of an offence and has been sentenced to more than 12 months imprisonment without the option of a fine.
This means that Zuma could only be eligible to contest elections five years after his prison sentencing. This has become the sticking point to which Zuma’s legal team has argued unfairness.
Mpofu argued on Monday that Zuma’s remission and having served three months of his 12-month sentence meant that Zuma was eligible to participate in the elections. He said Zuma was not pardoned but was granted remission by Ramaphosa.
“What we are saying is that if he was pardoned, then this argument would not stand, but the effect of remission has been clearly defined as to cancel the sentence or to set aside the sentence. In this case, the ultimate sentence, as a result of the remission, is three months. Once the sentence is set aside, whether as a result of remission, it is set aside.”
Mpofu said the point they are making was that the IEC does not have the authority, or it must tell this court where it gets the authority to implement section 47.
Section 47 mainly deals with the fact that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the assembly.
“The answer is, ‘nowhere’. It does not work that way, it can not wake up and do whatever it wants. You don’t say when you apply the rule of law that you can do anything that you are not prohibited from doing. It says you can only do things that we are authorised by law to do.”
Mpofu said the IEC only has powers to manage the elections.
“The National Assembly is entrusted to manage its affairs, and that includes to determine who is a member and who is not a member. Ideally, if the IEC allows my person to be on the list now, and then in April, that person is sentenced to 10 years, what must happen? The IEC has nothing to do with it,” he added.
“The National Assembly must deal with it. It is the National Assembly that must tell that person that they are not eligible to be a member. The IEC does not enter anywhere in this.”
Mpofu accused the IEC of getting excited in all types of matters when it comes to the uMkhonto weSizwe Party and that they wanted to warn the IEC not to descend into the political arena.
Advocate Tembeka Ngcukaitobi for the IEC said that Zuma is not qualified to be a candidate “right now” and does not qualify to go to the National Assembly.
Ngcukaitobi said the decision by the president to remit Zuma’s jail term cannot be used to change his sentence.
“It was not even the decision of the president to change it from 15 months to three months. We have to confront this matter and not try to tiptoe around the matter and make excuses for this appellant. The president did not change Zuma’s sentence, he had the power to change the term of the sentence,” he said.
He added that Ramaphosa’s decision was irrelevant to the sentence Zuma was given by the court.
“Zuma is disqualified,” he said. “We must not conflate this with the period served and the date of his release. The remission did not change the sentence. It simply determined the period of release. The executive cannot say you are sentenced to 15 months, it can say that we forgive you, you are now released,” Ngcukaitobi said.
“The fact that the president says,’ I don’t want to keep sick people or old people in prison because I have the power to do that and forgive’, does not mean that you can go back and rewrite the sentence.”
He said if the court rules in favour of the MK Party, it would mean that some people sitting in the National Assembly don’t qualify to be there.
“It is true that some people will lose their rights in the National Assembly. There is no argument here about the exclusive power of the Electoral Commission. At the electoral stage, that screening is done by the IEC. We say the court must dismiss this ground because it has no merit.”