By imprisoning a former president, the country has set an example for constitutional democracies across the world. By Eusebius McKaiser

Former President Jacob Zuma

Just before midnight on July 7, a previously unthinkable event took place in South Africa. Former President Jacob Zuma was taken into custody by South African police at his rural homestead in Nkandla, KwaZulu-Natal, and transported to a prison within the province where he started a 15-month sentence as legal punishment for a guilty verdict handed down by South Africa’s Constitutional Court—the country’s highest—for being in contempt of that court.

The imprisonment of Zuma represents a triumph for constitutionalism in a region where former liberation movement heroes, such as Zimbabwe’s first democratic president, Robert Mugabe, often became neocolonial thugs who reproduced the anti-democratic abuses of the colonialists they defeated. In fact, the story of Zuma’s imprisonment carries many important political lessons for the international community, including for long-standing constitutional democracies like the United States, Canada, and Germany.

The way South Africa’s Constitutional Court handled this case should be emulated by high courts around the world. The court was utterly unfazed by the possible political consequences of its decision, and justices simply got on with the business of dispassionate legal adjudication, strictly applying constitutional law to the facts before them.

Justice Sisi Khampepe wrote in the majority judgment: “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. Never before has the judicial process been so threatened. Accordingly, it is appropriate for this Court to exercise its jurisdiction and assert its special authority as the apex Court and ultimate guardian of the Constitution.”

Crucially, the court then asserted its duty to punish this sort of attack on the judiciary. She further wrote: “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.”

And therein lies the political and legal lesson for other countries: Politicians must be made to reconcile themselves to the fact that they are ordinary members of society rather than exceptional beings who are licensed to escape the reach of a country’s laws.

South Africa is unfortunately infamous for its stubbornly high levels of violent crime, extreme inequality, low growth rates, and high levels of joblessness. At present, it is also facing a public health crisis with a poor vaccine acquisition and rollout strategy in the face of the COVID-19 pandemic.

The other negative theme that dents the country’s reputation is corruption. During Zuma’s presidency, from 2009 to 2018, large parts of the South African state were hollowed out and preyed on by private interests in cahoots with wayward politicians and civil servants selling their souls to the highest bidders. Locally, the grand theft of public resources was labeled “state capture.” Zuma and the governing African National Congress (ANC) were central to the creation of opportunities for billions of South African rands to be stolen, particularly by one family that had cozied up to Zuma and the ANC—the Guptas.

Thuli Madonsela, South Africa’s former public protector (a position akin to that of an ombudsperson), ordered that a commission of inquiry be set up to investigate state capture just before her term in office expired in 2016. This commission summoned Zuma to appear before it as a witness, but on Nov. 19, 2020, when he was to answer a number of questions, Zuma walked out of the inquiry after an attempt to get the commission chair, Raymond Zondo, to recuse himself failed.

Given that Zuma is a former president who could inspire others to evade and disregard the administration of justice, the court concluded that only prison time would deter others.

From that point on, he stopped all cooperation, so the commission eventually turned to the Constitutional Court to direct Zuma to answer questions before it. The court found that the very legitimate constitutional role of the state capture inquiry to dig for the truth about widespread corruption could not possibly do its job properly if someone as central to many of the allegations as the former president did not honor a lawful request from the commission to appear before it.

The court instructed Zuma to go back and testify. He still refused and simply did not appear on Feb. 15 as requested by the commission, backed by the Constitutional Court directive. Instead, he launched countless attacks on the judiciary in general and Zondo in particular. He dug in his heels and casually asserted a willingness to go to prison rather than testify. That is when the commission went back to the Constitutional Court to argue that Zuma was in contempt of the order that he appear before it. Zuma’s final constitutional delinquency was to refuse to even file responding papers with the Constitutional Court, even though he had plenty of opportunity to explain why he did not honor the court’s order.

In a scathing portrayal of Zuma as “recalcitrant” and describing his attacks on the judiciary as “egregious,” “insidious,” and motivated by a desire to “destroy the rule of law,” the court found Zuma guilty of contempt on June 29 and argued that the extent of his trampling on the authority of the Constitutional Court was a grave offense. Given that he is a former president who could inspire others to evade and disregard the administration of justice, the court concluded that only prison time would deter others.

Zuma was still unfazed and again ignored the court’s order that he hand himself over to the police to start his sentence within five days. He did not and instead called a press conference in which he reiterated his lack of regard for the judiciary, maintained his innocence, and generally painted himself a victim by alluding to conspiracies without any evidence. This is why, on Wednesday evening, the police had to assist the court by taking Zuma into custody. He did not put up a fight, and, after some feared that a small crowd of supporters may violently defend him, no blood was spilled. He was peacefully escorted to prison.

The most important lesson South Africa’s response to Zuma’s abuses holds for the world is that the principle of constitutional supremacy can be defended if there is political will to do so. Every person must be equal before the law. In practice, however, politically and economically powerful individuals too often escape the long arm of the law. A crucial test, therefore, of whether a constitutional democracy is genuinely committed to substantive democratic principles and values is how it treats the powerful when they are in legal trouble

It is rare for members of the executive to be investigated, let alone found guilty of crimes. Although several countries have imprisoned former leaders, those processes have often been tainted by political retribution. It is rarer still to be found guilty of contempt of court, let alone sentenced to actual time in prison. That fact alone means that the judiciary succeeded in demonstrating that the South African Constitution trumps politics.

For Zuma to casually ignore a valid Constitutional Court order was a way of placing himself above the law. Too many political leaders have done so. South Africa’s successful handling of his contempt of court shows that it is possible to judge former heads of state fairly as ordinary members of society who are not entitled to special legal treatment.

South Africa’s successful handling of Zuma’s case shows it is possible to judge former heads of state fairly as ordinary members of society who are not entitled to special legal treatment.

A second lesson from Zuma’s imprisonment is that postcolonial governments do not need to become neocolonial monsters. Africa is littered with case studies in which the democratic project, after liberation, goes awry in the second or third decade of freedom. This often manifests itself in leaders’ refusals to relinquish political power when defeated at the polls. The ANC in South Africa has yet to face this historic test because it remains, despite leadership and governance weaknesses, a powerful social movement and also has the gift of facing a weak electoral opposition. When the ANC faces imminent loss of political power, South Africa will then be tested once again.

It is too soon to say that South Africa is a model for the international community when it comes to political accountability. After all, not a single person has, to date, been sentenced to prison time for state capture, despite the enormous amount of work done by the commission looking into corrupt government deals. But it would be a mistake to downplay what the imprisonment of Zuma represents symbolically.

Zuma is not the only politician in South Africa or in the world who thinks of himself as above and beyond the law. And the derailing of a democracy does not happen overnight.

There is often a slow decline in democratic norms and values—and concerned citizens must look out for the red flags. Are the police willing to do their job when they are given cases involving politicians? Are courts willing to send someone to prison if they offend the mores of society, as expressed in the statutes of the country, even if they are from a well-known political family? Can democratic accountability be entrenched, especially when former liberation movement leaders are the ones who need to be held accountable legally, morally, and politically?

In Zuma’s South Africa, all of those red flags were plainly visible as a fledgling democracy that had inspired the world began to veer wildly off course. With last month’s judgment and Wednesday’s imprisonment of a former president, South Africa has set its democracy firmly back on track.


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