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S. Africa Politicians "Expedience Before Rule of Law" - Analyst

FILE: A special sitting of parliament gets underway in Cape Town, South Africa, Dec. 13, 2022.
FILE: A special sitting of parliament gets underway in Cape Town, South Africa, Dec. 13, 2022.

A number of politicians put expedience before the rule of law in 2022. Cape Town News 24 Parliamentary reporter Jan Gerber reflects on some of the most notable incidents in this analytical article.

The year 2022 saw an increased number of unsubstantiated attacks on the rule of law by South African politicians, according to Cape Town parliamentary analyst Jan Gerber.

This was perhaps seen not surprising - it was after all the year in which the Zondo Commission's report would come out, implicating several high-ranking politicians, meaning there are many people with a lot to lose if the judiciary functions and the rule of law prevails.

It happened against the backdrop of the ANC's internecine machinations as the year would culminate in the party's national elective conference.

People hardly got used to writing "2022" as the date when the first salvo was fired from long-serving minister Lindiwe Sisulu.

In her missive, she sought to explain South Africa's high social inequality by, among other things, accusing unnamed black politicians of becoming "black assets for colonized capital" and enjoying caviar while the masses suffered.

She also referred to unnamed judges as "mentally colonized". It appeared that she laid the failures of the ANC-government “of which she was part for more than 20 years“ on the judiciary and the rule of law.

It was also considered an attempt to curry favor with the ANC's so-called radical economic transformation (RET) faction in the run-up to the ANC's leadership election.

If this was the case, Sisulu dismally failed. She didn't have enough support to stand as a candidate for a top seven position. She did make it onto the ANC's national executive committee.

In an unusual step, then acting Chief Justice Raymond Zondo interrupted working on the second part of the commission's report to express how horrified he was that Sisulu "questioned the rule of law" - despite the fact that she has taken an oath to protect the Constitution.

The ANC distanced itself from Sisulu's comments, but she remained in President Cyril Ramaphosa's Cabinet.

Hot on the designer heels of Sisulu was Sihle Zikalala, at the time still premier of KwaZulu-Natal and provincial secretary.

Showcasing a mindboggling flair for irony, he called for a constitutional overhaul to establish a "parliamentary democracy" in South Africa on Human Rights Day.

Zikalala's argument centered on the notion that the courts in South Africa are anti-transformation, and that the legislature should be the final decider on policies and legislation.

In most basic terms, parliamentary democracy means no court can overturn a law of Parliament. Parliament's laws are supreme. The courts can only interpret the laws. "But the Bill of Rights," you say. Forget about it - in a "parliamentary democracy", parliament can simply write laws nullifying a bill of rights, with no Constitutional Court there to protect the citizenry.

This should sound vaguely familiar to those older than 28, because it was from a similar arrangement that apartheid's vicious laws came into being. Perhaps the most ludicrous example is the infamous Sobukwe Clause - a piece of legislation drafted by the apartheid parliament to keep one man, PAC leader Robert Sobukwe, imprisoned. No court could overturn it.

Zikilala's ideas bore a striking similarity to comments from Jacob Zuma a year before, when ANC leaders tried to convince him to subject himself to the rule of law and appear before the Zondo Commission.

"The role of the judiciary was only intended to be the enforcement of the law, not to control the outcomes of a democratic process.

"What are we doing to fix this? How can just 11 people have so many powers to control a whole elected legislative assembly?" Zuma asked, according to his speaking notes for the 8 March 2021 meeting, which made its way into the public domain.

Albeit that Zikalala found some support from RET-figures, like Andile Lungisa, who was convicted of assault after hitting a fellow councilor with a jug, the dangerous and hairbrained notion, fortunately, disappeared from the public debate. For now.

The EFF's unsubstantiated attacks on the judiciary

Not content for playing its part in politicizing the Judicial Services Commission, the EFF used its platform in the National Assembly and its leader Julius Malema's soliloquies at press briefings to launch unsubstantiated attacks on the judiciary, peddling insinuations that the judiciary is captured.

This is a trend that started in 2021 already but continued into 2022. Chief Justice Zondo and Gauteng Judge President Dunstan Mlambo emerged as their favored targets.

Several of the EFF's leaders, including their supreme leader, Malema, are, of course, no strangers to the view of a courtroom from the dock.

A 15-month prison sentence for contempt of court (even though he was only behind bars for a few months before being unlawfully released on medical parole) did little to stem former president Jacob Zuma's decades-long assault on the rule of law.

At his first public appearance after his "medical parole" expired, the corruption-accused former president said: "The sad part was that I was arrested for no reason at all," Zuma said, adding "The real reason was because I refused to heed the advice of judges of the Constitutional Court when they asked me to do something that was against the Constitution when they were trying to force me to answer questions even against my own will, which is against the law.

"When they insisted, I then said I would not go to their court; they could do whatever they wanted. I will repeat this again if they take the same stance," threatened Zuma, News24 reported at the time.

This wasn't the last "private prosecution" Zuma would launch in 2022. On the eve of the ANC elective conference, he brought proceedings against Ramaphosa. After the National Prosecuting Authority (NPA) indicated that the nolle prosequi certificate his prosecution is based on doesn't apply to Ramaphosa, without a hint of irony, Zuma's foundation said the NPA "must humble" itself before the courts.

What to expect in 2023

It is unlikely, Gerber says, that these attacks would subside in the aftermath of the ANC's conference. The full effects of the Zondo Commission's report are yet to be felt, and several politicians are implicated, several of whom have indicated that they will put the findings against them on review. This might well be accompanied by pressure on the judiciary if decisions don't go their way.

Furthermore, a rogues' gallery has been elected to the ANC's national executive committee this month. Zikalala received the most votes in the NEC election, and Sisulu also made it onto the NEC.

It thus seems unlikely that the governing party will safeguard the rule of law in a united front.

As for the judiciary, one can only hope that Zondo's words in response to Sisulu remain true in the face of continued attacks: "We will not change, we will still continue and do our jobs."