Zuma must commit to the rule of law, not the rule of war

Since Judge Chris Nicholson ruled in his favour last Friday, Jacob Zuma has suddenly become a staunch supporter of the courts' role in promoting constitutional democracy.

On Monday, he told an audience that, "Our faith in the judiciary has...been given a further boost by the ruling...", and that the "judgment has re-emphasised the independence of the judiciary and the critical role it plays in interpreting our Constitution...".

Most importantly, Zuma claimed, the verdict "opened the eyes of the nation to the critical task at hand, to...protect our democratic institutions and prevent their abuse to further political agendas".

It is all very well for Zuma to have made these remarks after the Pietermaritzburg High Court's ruling, since the judgment went his way. Beforehand, however, he showed little inclination to contradict or restrain those of his supporters who had openly intimidated the judiciary and threatened to unleash a wave of violence if he lost his case. One of the unintended consequences of the verdict is that Zuma's supporters may well believe their strategy worked.

Zuma's double-dealing reflects the "lie in the soul", to use Plato's term, of the new ANC leadership cabal elected at Polokwane: its misguided belief that the ANC is more important than the Constitution.

When constitutional institutions happen to come down on the side of its leaders, the ANC is happy to talk the language of constitutionalism and proclaim its commitment to the rule of law. When it feels thwarted by those institutions, the ANC reverts to revolutionary war-talk; it brands them "counter-revolutionary" enemies of the people, and elevates the rule of war over the rule of law.

A week before judgment was passed by the High Court, some of Zuma's backers protested outside courts in KwaZulu-Natal . They carried banners stating: "We shall take arms if need be to support [the] ANC President". Others burnt tyres outside police stations, and threw stones at police officers.

Neither Zuma nor the party he leads unequivocally condemned these actions. That is because the new crop of ANC leaders has only a tenuous attachment to the rule of law.

We have seen it in what former ANC MP Kader Asmal calls the "militarisation of our political discourse" - statements by senior ANC officials calling on people to "prepare for war", "kill for Zuma" and "fight to take over the streets".

ANC Youth League President Julius Malema specialises in this sort of inflammatory rhetoric. Before the High Court passed judgment, he pledged: "We'll never hand over our President to jail without a fight. We're going to fight...Any force that tries to block our way, we will eliminate. We are on a mission here. We will crush you".

ANC Secretary-General Gwede Mantashe also made warlike threats against the judiciary before the High Court ruled. He labelled Constitutional Court judges "counter-revolutionaries" and said that "when the...judges pounce on our President we should be ready at that point in time [because] our revolution is in danger [and] we must declare to defend it till the end".

Malema and Mantashe's pronouncements, and countless others by senior ANC leaders, formed part of a systematic campaign of intimidation against the judiciary over the months that Zuma appeared in court.

The reasons for the campaign are not hard to find: If the judiciary and the Constitution stand in the way of the personal interests of the ANC President; if they contradict decisions taken by the party; and if they frustrate the party's drive for absolute power, then the ANC is ready to attack the judiciary and jettison the Constitution.

That is why Zuma's recent utterances about the judiciary and other constitutional institutions need to be taken with a pinch of salt. After all, this is the same man who argues that "the ANC is more important than even the Constitution of the country".

However, if Zuma is serious about the rule of law, the constitutional mandate of the courts, the independence of the judiciary, and the political neutrality of other democratic institutions, he must match his words with deeds.

Firstly, he must accept the decision by the NPA to appeal the High Court's ruling, and instruct his party to do the same. ANC spokesperson Jessie Duarte has called the NPA's move "cynical and ill-considered". Cosatu's KwaZulu-Natal Secretary has described it as "a declaration of war on our people".

It is hypocritical of the ANC and its alliance partners to praise Judge Nicholson's ruling and then to lambaste the NPA's decision to appeal it. The NPA is fully within its rights to appeal the verdict - that is the due process of law - and Zuma has himself had recourse to the appeals mechanism on several occasions during his trial.

Moreover, if there is a prima facie case against Zuma, the NPA is legally bound to explore every legal avenue to ensure justice is done. That is what the rule of law requires, and this is what the Nicholson judgment also emphasised.

Secondly, as ANC President, Zuma must abandon his party's cadre deployment policy. In deploying cadres to supposedly independent state institutions, the ANC has subordinated these institutions to its own political agenda. Once factionalism became rife within the ruling party, it was inevitable that cadres would use the institutions they led to fight battles on behalf of their political masters and persecute their political opponents.

Indeed, this is what Zuma maintains about the NPA: that President Mbeki got the former National Director of Public Prosecutions, Bulelani Ngcuka (a deployed ANC MP) to do his bidding in making public claims about a prima facie case of corruption against Zuma.

Cadre deployment has completely undermined the independence of our constitutional institutions, whose very role it is to limit the ruling party's power and guard against the abuse of that power. It is time for the cadre deployment policy to be discarded once and for all, and Zuma must set the ball in motion.

But he is unlikely to do so.  Why would Zuma want an independent person as the National Director of Public Prosecutions when he is facing allegations of 783 counts of bribery over 10 years involving R4,2-million?  Zuma has done everything to avoid his day in court in order to gain the power of the Presidency. If he does become President, it is likely that he - more so than Thabo Mbeki - will abuse the office to protect and enrich himself and his clique. Cadre deployment is one of the key tools of abuse.

Zuma's commitment to constitutionalism, and the commitment of the ruling party's post-Polokwane leadership, has yet to be truly tested. The NPA is to appeal the High Court ruling, and it may reinstitute charges against Zuma. If either of those moves is successful, our constitutional democracy will face its greatest test yet. But our judiciary is strong, and more people support the rule of law than the rule of war. For that reason, I believe that the Constitution, rather than empty war-talk, will win the day.

This article by Democratic Alliance leader Helen Zille was first published in SA Today September 19 2008