/Mpumelelo Mkhabela: The Constitution has to prevail in the Jacob Zuma legal saga

Mpumelelo Mkhabela: The Constitution has to prevail in the Jacob Zuma legal saga

2020-04-30 13:31

Zuma and all of us are equal before the law. Whether he will be found guilty or not, South Africa’s Constitution must triumph for the sake of the future of the Republic, writes Mpumelelo Mkhabela. 


Equality of citizenship and equality before the law are among the most fundamental and irrevocable provisions of the South African Constitution. 

In the founding provisions, the Constitution states that all citizens are equally entitled to rights, privileges and benefits of citizenship.

In the Bill of Rights, the Constitution states: “Everyone is equal before the law and has the right to equal protections and benefits of the law.” 

Lockdown or no lockdown, we should consistently remind ourselves of these provisions and accordingly claim our rights and while simultaneously performing our citizenry duties.  

The annual celebration of important national days such as Human Rights Day or Freedom Day must not only be about the right to participate in political activities, important as this is as the most practical demonstrations of political emancipation.

It must also be about equality of citizenship and equality before the law.  

Sadly, many politicians hardly refer to equality of citizenship and equality before the law in a universal sense in their celebratory speeches.

Given the history of colonialism and apartheid, it is tempting for those who fought for freedom to celebrate only the elimination of racist laws and right to vote.  

It doesn’t appear to them that the provisions of equality are not only about eliminating discrimination and inequality between races. They are equally applicable among the previously oppressed. 

The politicians obviously enjoy positions of power and influence that come with perks.

But the Constitution, the supreme law, says the president of the republic and a car guard are equal before the law and are entitled to equal protection of the law.

Beyond parliamentary privileges designed to protect free speech, we don’t have a political caste or hierarchy of rights and privileges.

South Africa’s constitutional system does not have a provision that gives the president – present and former – immunity from prosecution.

The only and the last time something close to immunity was provided for anyone had to do with apartheid-era related crimes.

Amnesty could be granted based on the Truth and Reconciliation Commission’s assessment of disclosure and political motivation of the crimes committed during apartheid.

The establishment of the TRC was one of the conditions for the relatively peaceful transition from apartheid to democracy. That is, from legalised racial inequality to legalised universal equality before the law. 

Former President Jacob Zuma was among ANC leaders who broke bread with the National Party of apartheid in an effort to put South Africa on a path to constitutional democracy.

He should take credit for being one of the midwives of the present constitutional order in which universal equality before the law is enshrined. 

To many South Africans, however, the principle of equality before the law has become a joke.

They see politically connected thieves enjoying their loot freely, knowing they won’t be caught, let alone put on trial. For years of Zuma’s battle to avoid prosecution, he too was seen in this light. 

In the minds of many South Africans who have become cynical about the rule of law, it’s almost as if we live on the Orwellian farm, where some are more equal than others.

Corporate and political elites enjoy superior protection of the law by among other means, using economic power to hire the best lawyers. 

Political players and their associates use and abuse their power, including by appointing of heads of law enforcement agencies, in ways that shields them from arrest or prosecution.

These powerful elites make nonsense of the constitutional provisions of equality before the law. 

They are at the heart of lawlessness that has filtered all the way to the grassroots.

When those at the top are seen to be eating without consequences, so was advised Mwai Kibaki, Kenya’s former president, by John Githongo, the then anti-corruption crusader, the war on corruption would be lost.

It wouldn’t matter what the corruption laws said. It turned out Githongo was advising the mastermind of eating without consequences. 

Jacob Zuma’s battle against the charges of corruption have done untold damage to the country’s constitutional system.

On his way to the presidency, institutions and people’s personal careers and integrity were sacrificed.

A judge, a prosecutor and many others had their reputation sullied, as they tried in various ways to help Zuma to ascend to the top. 

There was even a talk of giving him special immunity in exchange for his early retirement and political peace. The United Democratic Movement’s Bantu Holomisa was one of the proponents in this idea.

It would have destroyed the equality clause. 

Zuma’s party, the ANC, which once put together a high-level national executive committee team to help clear him of the corruption allegations, is still reeling from the long-term consequences of the damage wrought.

As things stand, the party’s membership and electoral conference outcomes are openly determined by individuals and corporates with deep pockets.

All factions participate in what is effectively a money contest. 

The transformation of the character of the ANC to what it is today is to a large extent (though not the only reason) the outcome of Zuma’s battle with his perceived political enemies and independent state institutions.

His battle against state institutions changed him from an anti-apartheid insurgent to democratic-era insurgent within the state. 

Once he had risen to state power, he consolidated his immunity.

Key decisions, such as the disbandment of the Scorpions, and key appointments, such as those at the National Prosecuting Authority were motivated by desire to render them incapable of holding him to account.  

With immunity secure, so he must have thought, Zuma graduated to other important things that are causing Deputy Chief Justice Raymond Zondo sleepless nights.  

But Zuma could never dare attempt to directly delete the equality before the law provisions of the Constitution.

And two more constitutional provisions made sure he was cornered: the power of courts to review and set aside unlawful decisions, such as the NPA’s decision to withdraw charges, and the presidential two-term limit.  

The judicial review process was used to the fullest by the Democratic Alliance. It doggedly fought to secure the so-called spy tapes and thereafter to review the NPA’s decision.

The trail of court judgments in this case have strengthened our jurisprudence and the equality before the law principle regardless of the outcome of Zuma’s trial in the end. 

Never take these accountability measures for granted.

Zuma and the constitutional negotiators who made them law in the first place did so for a very good reason. And it is that reason that Zuma will stand trial. A court of law will decide his fate. Like it does with all other citizens.  

As a former president who enjoyed his political rights up to the echelons of state power, he has more privileges than that of an ordinary Joe in that he’ll be represented by senior counsel.

And to spice it up, he will be escorted to court by a convoy of shiny German sedans that would embarrass Chancellor Angela Merkel who is driven around in a less glamorous VW combi.  

But Zuma and all of us are equal before the law.

Whether he will be found guilty or not, South Africa’s Constitution must triumph for the sake of the future of the Republic. 

– Mpumelelo Mkhabela is a regular columnist for News24.

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