Jacob Zuma and the beginning of the end of the Age of Impunity

It is rare to find a former head of state sentenced by a court to time behind bars. The world’s oldest sustained democracy has not done it (although it may do so soon), many other countries have also been unable to do it (though France has been rather harsh to two of the three previous presidents). It seems likely that this is a test that we will pass: on balance it is more likely that Zuma will go to jail than not, despite the loud support he will receive over the next few days from some corners of South Africa. But the other test of this will be in the ANC, and whether it is in fact on the path to its renewal.

There are many elements of Greek tragedy and irony in Tuesday’s ruling.

The irony is this: the court ruled that the former president must lose his freedom not because he allowed people to steal from us, not because he cheaply sold us out to the Guptas, not because he attempted to divide our nation further, not because he received money from Schabir Shaik, but simply because he refused to obey a Constitutional Court order that he must testify at the Zondo Commission.

To put it another way: he’s going to jail for refusing to give evidence that he has said he wanted to give, to a commission he himself appointed. If it feels absurd, it is because it is absurd.

At least four of the Constitutional Court judges were appointed by him (two were appointed by President Cyril Ramaphosa and two others are acting judges of the Constitutional Court).

The element of Greek tragedy comes from the inevitability of this.

From 2004 onwards, when the first evidence of the payments made by Shaik to Zuma was heard in the Durban High Court, through the conviction of Shaik, the laying of charges against Zuma, the Mauritian documents application (which led to Western Cape Judge President John Hlophe attempting to influence two judges), Mokotedi Mpshe’s ridiculous decision to withdraw the charges on the eve of the 2009 elections, the Zuma Spy Tapes case, his attempt to keep a chief justice in office for longer than constitutionally allowed and then finally the Nkandla judgment, he has been at odds with the law.

Somehow, it was always going to end like this, with a Constitutional Court judge deciding he must go to jail.

Despite his Struggle history, his contribution to democracy and peace in KwaZulu-Natal and his 10 years on Robben Island, it has come to this.

And all because he has refused to give evidence. If it sounds a bit weird, it is because it is weird. There’s a chance it was a calculated set of moves all along, but possibly an entirely new type of chess will have to be developed to understand the strategy.

The next step, of course, is what happens next.

The clock is ticking, as the court gave him only five calendar days to report to the Nkandla Police Station or the Johannesburg Central Police Station. If he fails to do that, the police commissioner and the police minister have three calendar days to arrest him.

Already his supporters, Mzwanele Manyi and Carl Niehaus, are claiming that he is the victim of the court, that he has been unfairly treated.

His son, Edward Zuma, claimed that he would “lay down my life” to prevent his father from being arrested.

There may be only three realistic options, as it could happen in this world.

He can simply comply, go to jail and wait out his time, or make some kind of application for early release based on his age and health.

Or he can skip the country and go wherever he may have friends and resources. Perhaps his son Duduzane Zuma could take some time out of his campaign for the leadership of the Ward 11 branch of the ANC in KZN to show him around Dubai.

Or he can fight. 

The problem with the last option is that he has very little to fight with. The Constitutional Court is the apex court and there are no other legal avenues. He does not appear to have the support within the ANC to really win any kind of major political battle that would put so much in danger to protect the man many personally cannot stand.

Any kind of large-scale violence, certainly of the sustained sort that would be needed to stay out of jail, does not appear realistic. While the threat of violence is always there, it seems unlikely to materialise in any significant way, despite the threats of Edward Zuma.

In the meantime, there are the implications of the judgment for the ANC. It released a statement on Tuesday afternoon saying it had noted the judgment and its top leadership would discuss it.

Whether you are Malusi Gigaba, Health Minister Zweli Mkhize, Deputy President David Mabuza, Joburg Mayor Geoff Makhubo, or just a local councillor making money from your position, you are now much more vulnerable.