By Sam Kargbo
The world is being hit by the breakdown of law and order in South Africa because of the sentencing of Jacob Zuma to 15 months’ imprisonment for contempt of court. This piece attempts to analyze the situation, and point out what is wrong with the jailing of Zuma at the time he was jailed.
There are moments when human beings break out of control and act in accord with their true self. It is in those autonomous moments that you can know them for who they are. The authentic human being is an autonomous one and not the controlled and pressured one. Behaviour can be motivated by thoughts and feelings, which provide insight into the individual's psyche, revealing attitudes and values. To the psychologist, when we are not aware of needs, we act based on our feelings, thoughts, habits, or impulse. To me, the bottom line is that people do not behave in a vacuum. There is hardly any action that is not traceable to a feeling, a thought or habit that is traceable to a need.
The needs of the average poor, deprived, depraved and ignorant African are different from those of the African elites. The elites have conquered poverty. They can provide for themselves and their families the basics of life. They strive for an environment where the law behind the law operates to the fullest. Subordinating the state and every individual or institution to the law is a big deal to the African elite. Although these are not at the top of the wish list of the poor, the elites who interact with the state and assume the role of the peoples' spokespeople wrongly prioritize them.
The average African – the rustic folk, the man on the street and largely uneducated– is steeped in religion with high idolatry doses. Religion, relationships and inner peace are better definers of their well-being than the Rule of Law or economic prosperity. To them, prosperity, accomplishments and fortunes of every kind are favours from God.
When assessed in terms of physical and infrastructural development, income, money and other economic elements and variables, South Africa may not rank behind any other country in Africa. But the saying “Man shall not live by bread alone” has a profound meaning in this discussion. Economic prosperity or economic freedom may not mean much if it ignores what matters most to the poorest of the poor. The happiness of that group (the majority) is indeed the happiness of every African country.
It is, therefore, necessary to factor in the dimensions that matter to the poor or what they value more in economic development and strategies.
To the elites, who know the consequences of white-collar pillaging of the state, corruption is the worst of all economic crimes. It is much more than a monkey on our back. It is at the base of all developmental problems and the greatest threat to social cohesion. It undermines democratic and representative governance. Nothing has undermined public institutions like corruption. Be that as it may, fighting corruption can hardly feature on the first page of the wish list of the poorest of the poor.
This backdrop should throw light on the relationship between the jailing of Jacob Zuma and the attendant riots.
Zuma, who was President of South Africa between 2009 and 2018, was sentenced to 15 months in prison for contempt because he defied a court order to testify before a Judicial Commission investigating his presidency for corruption. His corruption scandals predated his presidency and lasted up to this moment – the time of going to press. The testimonies before the judicial commission by former ministers and state-owned corporations have not flattered Zuma. They have been so revealing and telling that the Constitutional Court, which is the highest court of South Africa, was persuaded to issue an order directing him to testify before a Judicial Commission. Expectedly, Zuma appealed to the sentiments of his supporters and resorted to clever stonewalling tactics. It was for this reason that the court convicted him of contempt and sentenced him to prison.
Convicting and sentencing Jacob Zuma is meant to sell the Rule of Law as a prized commodity in South Africa. Indeed, it will appeal to lawyers, jurists, philosophers, political scholars and students of Aristotle, Locke, Dicey, Hayek and Fuller and other brilliant thinkers who made the concept dominant in political theories. But as Thabo Mbeki – Jacob Zuma’s predecessor – would ask, was there no alternative to the Rule of Law in the context and circumstances of the jailing of Jacob Zuma? Is the jailing of Jacob Zuma worth the lives of the number of South Africans who have died and the ruin or harm that has befallen the South African economy?
Is the cautionary approach to the concept of the Rule of Law by thinkers like Plato and Carl Schmitt not vindicated? Was the importance of the Rule of Law not exaggerated in the context of the jailing of Zuma? This discussion is not meant to be a variant of the debate about the value of the Rule of Law. It is an exposition or, perhaps, an amateurish psychological survey of the state of minds of those who are prompted by, or more correctly, those who used the jailing of Zuma to wreak havoc on the economy of South Africa.
The Rule of Law is hallowed partly because of its pivotal role in liberal political morality. The prescriptions of the Rule of Law for democratic and representative governance or human and fundamental rights – including social and economic freedoms – have proven to be indispensable values. The sentencing and imprisonment of Zuma agree with the Rule of Law. Zuma has always been under the law. He was a public authority and a citizen who is subject to surveillance, scrutiny and the constraining framework of law and norms. There was never a time in his life when it was lawful and permissible for him to be ad hoc in his action or act arbitrarily and per his absolute discretion. The law behind the law does not permit that. Zuma was a president who presided over the resources and lives of South Africans. He might have enjoyed the shield of the unjustified principle of immunity from prosecution while in office. He is now a private citizen who ought to give an account of his stewardship to South Africans. It was an affront to the Rule of Law and indeed to well-established norms of public decency for him to question or try to circumvent an effort of the state to bring him to account. What is wrong in subjecting him to an accounting process sanctioned by the highest court of the land? His behaviour speaks volumes about the person that he is and the leader that he was. He is indecent and of no integrity. But the Rule of Law is not strong enough to single-handedly subdue and contain him within the confines of the law. Zuma and his ilk, who are gods to the ordinary people, require much more than the Rule of Law to domesticate them. The Government of South Africa missed this point. I will explain further.
The Rule of Law is not a silver bullet. It requires the assistance of the Will of the people and their unquestionable desire and absolute willingness to be regulated by equal standards and values. The majority of the people should understand and relate the concept of the Rule of Law to their daily lives and well-being. Coercing the ordinary people to comply with the laws and public norms is not enough. The folks should know and accept their necessity. Until the majority take it as given and essential for conflicts to be determined and resolved by the Courts of the land, the Rule of Law is by itself a veritable source of conflict. The legal or penal system cannot be automated or made to work seamless if the majority of the people have not internalized the concept of the Rule of the Law and have a sixth sense of the consequences of actions and criminal behaviour. The Courts and their procedural mechanism should not only be available to the people for the espousal of rights and settlement of their disputes. They must resonate with them as the main pillars for their peace and security. The Rule of Law can only be clear and determinate when it resides in the recesses of the hearts and souls of the people. In this regard, the independence of the Judiciary, with its avowal bond with the people, is essential. The people must have absolute confidence in the judicial system and its adjudicative process. The ordinary man must be the owner and protector of the Rule of Law and not the elites or philosophers. Making it the job of lawyers or jurists to drive the normative values of the Rule of Law takes it away from the common man or woman. It makes it elitist and removes it from the domain and sphere of the most active population. The consequences of the exclusion of the ordinary folks in efforts meant to deepen the Rule of Law will be dire. The Rule of Law has a strong relationship with the independence of the Judiciary and the attendant presumptions of fairness and justice.
The integrity of the Judiciary is the most effective tool in the fight against corruption. If the ordinary folks believe in the independence of the Judiciary, they will have a presumption in favour of liberty in the judicial process. Where that is absent, criminal trials with political flavour in a polarised society become a joke and source of resentment against the Government.
There is no time when the independence of the Judiciary and the integrity of the legal process, and in the particular penal system, is tested as when a criminal trial has a political undertone. Political motive and malice can be attributable to criminal prosecutions of political leaders by ordinary people who do not understand the relationship between law and the mechanisms of Government. Rustic and poor folks are sometimes preoccupied with the trauma of the inability of the Government in power to act by its electoral campaign promises. They are justifiably easily irritated or impatient with any attempt to throw in between their frustrations and expectations the prosecution of their hero. To the ordinary person, yesterday is the greener grass. Tampering with their nostalgic memories can be suicidal for any Government. This is more so where the people see the Judiciary as another branch of the Executive. Unfortunately, many African leaders do not see the political benefits of working side by side with an independent Judiciary, and as such, the Judiciary is usually the first casualty of a despotic and rogue Government. The language of the violent and anarchical reaction of the ordinary South Africans to the jailing of Zuma for contempt of court is simply that they understood it to be a persecution of their god by his enemies in Government. To them, it was not the Rule of Law in action but the rule of the bad guys, who are working for the enemies of their hero. In a word, the South African Constitutional Court put into use a constitutional symbolic sovereign power without the sanction of the owners of the ultimate sovereign power. It failed to read the political weather and mood of the people.
Perhaps the South African Constitutional Court has a lot to learn from the restraint, patient and cautious Supreme Court of Nigeria. Besides being circumspect in dealing with the malaise of contempt of court, that court has, for good reasons, resisted the temptation to tinker with presidential election results. Some say the heavens will not fall if they do for good and justifiable reasons, but it has resisted the temptation to risk the consequences of such a venture. The wisdom is that the day the majority of the Nigerian electorate disapproves of presidential election results, the Courts would not be the ones to reverse that result. Some decisions are better left for the people to take. To be sure, it is my prayer that there will come a day when the over 200 million Nigerians will domesticate the 360 members of the House of Representatives, 109 Senators, 36 Governors and one President who are sitting on top of their resources and destinies.
It is in that spirit that I will end this discussion with the following quote from Etienne de La Boetie, a French magistrate, classicist, writer, poet, and political theorist who lived for a short but very productive time between 1 November 1530 and 18 August 1563:
Where has he acquired enough eyes to spy upon you, if you do not provide them yourselves? How can he have so many arms to beat you with, if he does not borrow them from you? The feet that trample down your cities, where does he get them if they are not your own? How does he have any power over you except through you? How would he dare assail you if he had not cooperation from you?
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