The Zuma saga could become a milestone in the spread of Afro-nationalism

Here we are, then, Tuesday morning 6 July (when I usually write this column) and Zuma’s people are trying to prevent him from being imprisoned — after he has been sentenced.

There was an “order” of sorts, to arrest him if he failed to present himself to the authorities last Sunday, but he finagled a way of staying out of prison for at least a few more days. We have to wait and see.

By the time this column goes to press he may well be in shackles and behind bars. However, my gut feeling and from more than three decades of observing South African politics — especially acutely over the past decade or so — tells me that Zuma will not be arrested and he may not serve time in prison.

At best, I suspect, he would be placed under some kind of house arrest, or the courts will reconsider the order that he be arrested and suspend his sentence. The worst-case scenario is that never mind South Africa’s rather comprehensive legal corpus, the Zuma case will be politicised to the extent that it might affect the body of South African law. 

An all too brief summary of the law — by a non-legal person

South Africa has something of a hybrid legal system made up of a combination of English common law and civilian Roman-Dutch legal principles that can be traced to a civilian (colonial political) heritage. In this context, court procedure owes much to the common law tradition that includes adversarial trial, detailed case reports (including dissenting judgments) and general adherence to precedent.

In parallel to this, what is essentially a European system is customary law. In terms of Sections 30 and 31 of the Constitution, customary law is an equal partner in this hybrid legal system. Customary law was been defined by the Constitutional Court in Bhe v Magistrate Khayelitsha (15 October 2004) and is made up of three different forms: law that is practised in the community; law that is found in statutes, case law or textbooks on official customary law, and academic law.

The current hybrid system in a sense replaces the wilful imposition of laws during the settler colonial and colonial era, which were generally foreign. This typically marginalised or completely ignored the laws of indigenous people. A corollary of this is that local common law — that which stems from Roman-Dutch and English law — excluded African customary laws, which held together, so to speak, the indigenous people of southern Africa.

The key, here, is that since the end of apartheid, there have been attempts to ensure that African Customary Law is developed and given the same standing as the common law which historically favoured the colonisers. In so doing the attempt is to reconcile African Customary Law with the Constitution of 1996. Out of this ought to emerge a legal pluralism through the application of both African Customary Law and common law, and this pluralism can contribute to building social cohesion — with one law dominating the other, or two different legal approaches for the same “crime”.

It is worth bearing in mind that during English colonial rule, there was a system of “Native Administration” — a type of indirect rule. In terms of this policy, indigenous people could rule themselves according to indigenous law in certain matters (like marriage) while the colonial state retained exclusive jurisdiction over matters such as serious crime. I should stop here, as I am insufficiently qualified to say any more than that which I have presented here, nicht abgesichert — insufficiently protected from criticism. 

My formal knowledge of legal matters was acquired during my study of international trade law with a focus on the pre-Meiji era in Japan where legal and political systems operated in tandem with Japanese social customs and put a lot of pressure on people to resolve problems among themselves without the aid of lawyers. It should be said, though, that in the Meiji Era there were no lawyers, as we know them today, in Japan. During the Tokugawa period (1603-1867) there was a great emphasis on social harmony. 

Imagining a life beyond the Magna Carta and ‘the African Way’

A set of questions arise. Can indigenous or “traditional” law supersede common law, and given the rising nativism and an African turn towards a type of ethno-nationalism that besets the European world, destabilise South African society and force a retreat into indigeneity?

Let’s face it, whether we like it or not, South Africa’s Constitution is crafted on the basis of western liberal democracy and more particularly, on principles drawn from the Magna Carta which has (since the 13th century) served as the basis for individual rights in Anglo-American jurisprudence.

In step with this (if I may be so bold), South Africa has embraced late capitalist or industrial modernity that is constantly transforming our social and political economic relations. Given that the swelling radical economic transformation (RET), grouping wants nothing to with anyone that has anything to do with “white monopoly capital” and periodically speaks of “decoupling” from the global political economy, at what point do they make the point that Zuma is being judged by non-African laws, and he is not treated in “the African way” — a bit (slightly) like pre-Meiji era Japan shirked conventional Eurocentric jurisprudence in favour of indigenous settling of arguments for the sake of social cohesion.

We know, already, that there have been veiled threats of violence. Zuma’s lawyer, Christopher Mpofu, has threateningly said that sending the former president to jail could “create another Marikana” and that such a decision would “go against the will of the people”. Here “the people” determine Zuma’s fate, and not the legal system. Julius Malema, the putative leader of the RET faction, is on the record as saying white people should apologise, “for their rape, for their murder. When they apologise, they must do it the African way. We need cattle… a synonym of money. They must pay us billions and billions.”

In April 2016, Zuma told the National House of Traditional Leaders he would be “very happy that we solve the African problems in the African way because if we solve them only legally they become too complicated. Law looks at one side only, they don’t look at any other thing… They [courts of law] deal with cold facts and I was complaining [about] that, but they’re dealing with warm bodies. That’s the contradiction.”

That year, Zuma specifically said he would prefer that the Nkandla matter be dealt with “in an African way” rather than through a court of law — the very law that Zuma swore to uphold and protect.

What we are faced with, it seems to me, is that the law — I spent some time and space above to lay it out the best I understand it as a lay person — is largely derived from European principles and practices (and therefore “non-African). There is a pluralism in South African law that makes for traditional law operating alongside common law (a hybrid system that includes English common law, civilian Roman-Dutch legal principles, and customary law).

Politically, however, there is a push-back against anything non-African, coupled with an increase in demand for an Afro-centric nationalism (an African Nationalism, so to speak), that breaks with all things associated with “white monopoly capitalism” which is code-speak for everything from modernity, land ownership to providing the basis for decolonising everything. 

What, then, does all of this hold for a future South Africa? There is already an increase in scapegoating of non-Africans, repeated insistence on “the African way” and challenging the Constitution (based as it is in principles derived from the Magna Carta), all of which has distinct echoes with ethno-nationalism (white nationalism) and a fear that the West is losing its grip on the world, and that “the massive influx of non-whites is bad for the West”.

So, with the Zuma case, are we perhaps not witnessing the advent of Afro-nationalism, the African variant of the ethno-nationalism of the European World, and a rejection of the mainly Eurocentric body of South African law, never mind its pluralism and hybridity along with everything “non-African?” There certainly is a lot to think about. We’re still allowed to think what we want, non? DM