Critical course of history: South Africa faces biggest constitutional and political crisis since 1994

South Africa is at a critical moment that will decide its future for decades. For the first time in more than a quarter of a century, the country could be facing the possibility of some form of civil war.

Former president Jacob Zuma declared himself above the Constitution and the law – and the adjudicator on both – in his statement on Thursday, 25 March 2021, concerning the Constitutional Court hearing the same day and his “decision not to appear before the Commission of Inquiry into allegations of State Capture, fraud and corruption in the public sector including organs of state”.

Zuma accused the Constitutional Court, the commission of inquiry headed by Deputy Chief Justice Raymond Zondo and (effectively) the elected government of Cyril Rampahosa of establishing a “judicial dictatorship... to the detriment of legitimate democratic processes”, and that the “core principles about separation of powers between the judiciary, legislature and the executive” were “gradually being weakened”.

In effect, he is claiming that the current judicial process in South Africa is of the same order as under apartheid, and that defiance of the law is as legitimate for him now as it was 61 years ago for Nelson Mandela, Robert Sobukwe and others, including himself as a former activist and later commander of Umkhonto weSizwe, following the massacre at Sharpeville on 21 March 1960.

This would create in fact a “Sharpeville moment”, as when the previous principle of peaceful opposition to apartheid was overturned by the state massacre of unarmed protesters, leading to armed struggle against the state.

It is reasonable to conclude that Zuma now endorses the possibility of future illegal – and, almost certainly, violent – action by his own supporters, who will argue that they are acting, as he says, for “true freedom and democracy” against “judicial dictatorship”.

As the former elected president who refuses to face judicial inquiry into corruption under his administration, Zuma now confronts his successor – Ramaphosa – with the alternative of surrender to his action or enforcement by the state of the order of the Constitutional Court, should it accede to the Zondo Commission’s demand for a two-year prison sentence for contempt of court (or a shorter prison term).

The New York Times predicted on 25 March that his arrest will “set off mass protests by supporters of Mr Zuma and destabilise the country as it reels from the worst coronavirus outbreak on the continent, an economy battered by the pandemic and record-high unemployment”.

It reported that “at least 40 witnesses have directly implicated Mr Zuma in arrangements to plunder tens of millions of dollars from state companies. In total, an estimated $33-billion was siphoned from state coffers during his tenure”.

It noted he is also due to stand trial in May to face accusations that he took bribes from arms dealers in the 1990s.

As the Helen Suzman Foundation has argued, “contempt of court by a former president poses a unique threat to the courts, the administration of justice and the rule of law”. In terms of equality before the law, it continued, this requires Ramaphosa’s government to issue “punitive sanction” so as to “coerce Mr Zuma to comply with the Constitutional Court’s order, and to appear and give evidence before the commission”.

This is by far the biggest constitutional and political crisis in South Africa since the first general election under universal franchise in April 1994.

Courageous leadership by the government, to defend the Constitution and the law, is now essential. It is the only way to defend the best in South Africa’s heritage, and not capitulate to its worst. DM