Floyd Shivambu
South Africa’s 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 president Zuma for 15 months in prison. Tellingly, the departure from normal procedure included the disregard of the applicable legislation on contempt of courts which prescribes imprisonment not exceeding 6 months. Imprisonment is universally accepted as a mechanism and method of justice, yet a question remains as to what form of justice is the South African government seeking through its imprisonment of the country’s former president and head of state. How does the imprisonment of Jacob Zuma help South Africa? Is imprisonment a correct mechanism to resolve the otherwise complex political problems?
South Africa’s refusal to prosecute apartheid criminals and murderers in the early and mid 1990s was premised on the supposition that such will undermine peace which was essential for a transition to happen from apartheid to the current neo-colonial system. About perpetrators of apartheid atrocities, 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 cannot trump peace when justifying that the intention to jail a former president of Sudan should be held in abeyance. It is therefore not wise to almost always pursue the imprisonment route and option even when such threatens peace. This does not mean whatsoever 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 Jacob Zuma when he was president. These include his militarisation and securitisation of the country’s legislative arm, Parliament, wherein the police would be instructed to evict and physically assault parliament members of the Economic Freedom Fighters. All this happened when he giggled and on one occasion suggested whether the EFF should not be permanently expelled from Parliament. The direction Zuma was taking during his presidency was certainly not safe for a democratic dispensation. He was a direct threat to the democratic order which was embraced after decades of colonial domination and suppression of majority voices.
The Economic Freedom Fighters fought a fervent and relentless battle against Zuma and even allied with improbable, at times reactionary forces in attempts to remove him as president of the republic. In 2017, the EFF successfully mobilised society and even Parliament members of the ANC to vote against Jacob Zuma in a parliamentary motion of no confidence which would have ended his rulership before the end of office. We effectively stopped recognising him as a president of the republic due to his arrogance and persistent disregard of the EFF. During that period, the EFF never lost a single case against the ANC-controlled government and Parliament. In hindsight, we rightfully question whether our court victories were due to logically superior legal arguments or were just aligned with what the judicial system in South Africa wished for.
Like presidents Nelson Mandela, Thabo Mbeki and Kgalema Motlanthe and the entire ANC, Jacob 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 a motion that proposed for an investigation of the conditions of mineworkers. 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 of the country, and we succeeded in doing so. Towards his exit as ANC president, Zuma correctly announced fee-free education, which his parliamentary caucus voted against.
Despite his misgivings and reactionary postures, imprisoning Zuma is outrightly out of order and completely wrong. The historical and current reality is that prison has almost always been used an instrument to silence and oppress black people’s dissenting voices. Black people are most likely to be prisoners all over the world because there is some degree of treating black people with suspicion all over the world.
The ultimate recall of Jacob Zuma as president of the republic was punishment enough for all the perceived or real sins he committed when he was president. It is therefore not wise, and certainly not justifiable to pursue a former president who does not possess any threat to current regime and establishment. All white political parties, white people and the capitalist establishment always demand arrests and imprisonment of black leaders. The capitalist establishment’s media platforms, particularly eNCA even erected billboards calling for arrests of the state capture criminals as a way of saying that whosoever tried to take their dominance in South Africa’s economy must be jailed.
The request by president Zuma for Deputy Chief Justice Raymond Zondo to recuse himself during his testimony was not irrational. What was irrational was the deputy chief justice’s refusal to recuse himself, thereby inviting Zuma’s outright defiance and disregard of the Commission of Inquiry into State Capture. All records point to the fact that former president Zuma committed to appear before the commission of inquiry if the person whom he perceived to be biased recused himself. The commission’s prayers to the Constitutional Court that Zuma’s protest should be met with a custodial sentence was therefore not helpful and has caused a scar which will not be able to cure in the foreseeable future.
There are several solutions available to the current conundrum, and this includes Zondo recusing himself from presiding over the commission when former president Zuma appears. Whilst there are several accusations levelled against him, these are areas which any president can explain effortlessly. The accusations by Themba Maseko, the former head of government’s communications and information systems, for instance, that president Zuma called him to meet with the Guptas is easy to clarify because political and government leaders are always approached by businesspeople and the only logical thing to do when approached is to refer them to government officials who must in turn explain and give guidance on government procurement procedures.
We in the EFF fought for the establishment of the Commission of Inquiry into State Capture because allegations were 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 commission is not yet concluded, perhaps one of the witnesses will illustrate how R400bn was lost.
The people of South Africa are correctly concerned about the extra-ordinary imprisonment of former president Jacob 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 stole, he was imprisoned. When Nelson Mandela fought against apartheid, he was jailed. When Robert Sobukwe mobilised against the system, he was imprisoned, and a special law enacted to keep him in prison. 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.
Certainly, Jacob Zuma does not 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 into correctional services, but what is corrective in jailing a 79-year-old former president who otherwise says he will appear in a commission of inquiry if it is not presided over by a person he perceives as biased? What precedent are we setting for our country? Cyril Ramaphosa must use whatever form of legislatively permissible mechanism to release Jacob Zuma from prison. It is immoral and definitely unacceptable to jail an almost 80-year-old former president for refusing to be questioned by a person he believes is biased.
Mr Cyril Ramaphosa, the sitting president of South Africa, a protégé of the white capitalist establishment and a loyal servant of their interests, should know that his role in the imprisonment of Jacob Zuma is a lesson that he too will be imprisoned. Noting the perceived or legitimate observations that South Africa’s judiciary is captured, there is absolutely no way that the activities around his capitalist-funded rise to ANC’s presidency was not illegal. He will not be president forever and will most likely be held accountable for his crimes in Marikana and in the CR17 questionable money movements. He is certainly a candidate for imprisonment, and the question remains whether there is any wisdom in hounding former presidents and leaders and imprisoning them?
South Africa’s head of state and judges in the Constitutional Court or whatever court must always apply the law, and such application of law must be accompanied by wisdom and proper calculation of the consequences their decisions will bear. The imprisonment of former president Jacob Zuma is certainly not wise and must be reversed. Courts are presided by human beings, majority of them indigenous Africans, and they should not institutionalise a colonial mentality that imprisonment is the only mechanism to manifest justice.
* Shivambu is EFF deputy president.
** The views expressed here are not necessarily those of Independent Media.