How the ANC learnt to love the Constitution

William Saunderson-Meyer writes on the internal party manoeuvres around Zuma and Zondo


For weeks now, the news has been dominated by former president Jacob Zuma’s stated intention of defying a Constitutional Court order that he appear before the Zondo Commission of Inquiry into State Capture.

So far, it’s been an exercise in brinkmanship. Will Zuma remain unbudging and go to prison, as he states? Will an African National Congress government dare have him jailed, as it threatens?

It’s a peculiarly South African situation. In very few democracies would a court order against a former leader cause a crisis that potentially could bring down a serving president or force constitutional change. The older democracies have all weathered criminality in the highest echelons.

Italy convicted one of its most popular presidents of corruption without the sky falling in. Right now, in France and Israel, a former prime minister and a current president are shuffling through criminal prosecutions. In neither case is the constitutional order under threat.

The situation in South Africa is more fraught because this is an untested democracy. This government’s assumption has always been that any insurrection would come from those belligerent Boers. Instead, the threat is materialising from within its own ranks.

Some rag-tag members of the ANC’s uMkhonto weSizwe Military Veterans’ Association (MKMVA) have sworn to protect Zuma with their lives against any attempt at an arrest. This is presumably the same riff-raff that was deployed a few months ago in a rampage through central Durban, targeting migrants from other African countries and shouting pro-Zuma slogans.

Defence & Military Veterans Minister Nosiviwe Mapisa-Nqakula has berated the “veterans” — overwhelmingly young wannabes whose only military experience was with a fully loaded twig in the playground —  for their threats. Real veterans, she said, would uphold the highest values of discipline and order and they should avoid being used in a “counter-revolution”. 

There have been skilfully amplified expressions of support for Zuma from a sprinkling of ANC branches. The intention is to put pressure on President Cyril Ramaphosa to find a compromise that will let Zuma off the hook, failing which he may face a presidential recall.

The Zuma impasse coincides with a tightening of the legal net around the serving ANC secretary-general, Ace Magashule, leaving Ramaphosa with foes on all sides. Magashule, who has ignored the ANC leadership’s instructions to step down until his criminal trial is over, this week appears in the Bloemfontein Regional Court on corruption charges.

The same Radical Economic Transformation (RET) supporters who turn out to back Zuma are being trundled out to support Magashule. They say the charges against Magashule over a R255m tender are a political set-up and have “nothing to do with the law”. They want an “immediate investigation” into this “compromised” and “captured” judiciary.

At a more juvenile level, the  Congress of South African Students has joined RET to support Magashule and Zuma because students had obtained free education, bursaries and democracy through the leadership of Zuma and Magashule. “‘We feel if they attack Ace, they attack education. If they want to test us … they must touch Ace Magashule and they must touch Jacob Zuma.’

These intimations of justified resistance against illegitimate state structures create space for that dangerous political opportunist, Economic Freedom Fighter leader Julius Malema. They chime perfectly with his own necessity to discredit a judicial system that threatens him and his corrupt party.

Malema warned that that judges were “not special” and some sections of society would “rise against them”. The EFF would not continue to bury its head “in the sand against growing and now believable allegations that some prominent members of the judiciary are in the payroll of the white capitalist establishment”.

This is typical Malema. Hints at violence under a veil of conditionality to give himself credible deniability of ill-intent. Previously, it was that whites might well face future genocide but that he would not call for it yet. Now it is that judges might well face spontaneous mob violence unless they changed their crooked ways.

The EFF, which is one of the lost tribes of the ANC, has influence in excess of its sparse electoral support. Desperate to restore the EFF to the fold, the party has done everything possible — through its control of law enforcement, the prosecuting authority, and “Constitution-protecting” agencies like the SA Human Rights Commission — to placate the EFF.

But appeasement is only a way to win breathing space, not a solution in itself. Zuma’s defiance of the Zondo commission has drawn a line and a contest seems inevitable unless Ramaphosa simply folds.

To open the batting, Ramaphosa sent in Justice Minister Ronald Lamola. During this week’s debate on the State of the Nation address, Lamola warned against “spurious attacks” on the judiciary.

“The Constitution and the rule of law are sacrosanct components of our democracy and people must respect these principles. To allow anything else will lead to anarchy and open the floodgates easily to a counter-revolution.”

It’s an interesting turn of phrase by Lamola and Mapisa-Nqakula, for not only is South Africa an untested democracy but it’s an uneasy one. The ANC still primarily views itself as a liberation movement, rather than a modern political party and the words “revolution” and “counter-revolution” are important in the ANC lexicon.

The ANC is the vanguard revolutionary party and entrusted with implementing the National Democratic Revolution. And despite South Africa never having had a “revolution” in the first place, “counter-revolution” is regularly trotted out to describe anything or anyone at odds with the ANC ideology.

Perhaps it is more serious than semantics. Oscar van Heerden, an ANC stalwart close to Ramaphosa, describes the MKMVA tactics as “sedition” and Zuma’s refusal to adhere to a court ruling as a “treasonous” act.

It’s both ANC factions that see counter-revolutionaries lurking in the jungle. In a rambling and somewhat incoherent article last week, ANC Deputy Secretary-General Jessie Duarte appeared to suggest that the Constitution itself is counter-revolutionary.

The thrust of the article was how Zondo was impudently challenging the very basis of the ANC’s existence — that its representatives were accountable first to the party, since their authority came directly from the people, and only then to the Constitution. Zondo, Duarte wrote, was practising his “craft based on the narrow parameters of existing laws”. If this was allowed to continue, it would “turn our democracy into more of a neoliberal concoction than it already is…”

Although Duarte has since half-heartedly apologised to Zondo for her words, she articulated an influential standpoint. For all Duarte’s muddle and non-sequiturs, she gives us a glimpse of how a sizeable number of ANC leaders see the Constitution: an inconvenient impediment to the revolutionary quest of the ANC, a compromise necessary at the time to access political power.

For this reason, while Lamola is correct that Zuma’s and Malema’s failure to respect the Constitution and the rule of law could destroy our democracy, we should be sceptical of his sincerity.

And, after all, Zuma’s and his mob’s belief that the former president is being politically railroaded is, in essence, correct. The ANC has for almost three decades placed party interests above national interests, successfully skirting the law to protect the thieves and thugs within the tripartite alliance.

It was not until it dawned that state capture could see the party being voted out of office, that those ANC leaders who had tacitly tolerated corruption— like Ramaphosa — decided that some high-profile examples would have to be made. That’s when the president’s faction rediscovered their enthusiasm for the Constitution.

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