Will SA learn the right lessons this time?

The justices of the Constitutional Court face a huge challenge as they consider former president Jacob Zuma’s rescission application. They must apply themselves to the legal arguments before them against the backdrop of the negative political and economic consequences of Zuma’s arrest.

The question is, to what extent should a butterfly somewhere in the world stop flapping its wings out of consideration for the fact that doing so may culminate in a tornado elsewhere?

In chaos theory the butterfly effect states that the act of flapping wings is an “initial condition” the effect of which may sometimes be as big as a tornado, something the butterfly presumably does not realise as it does what is natural to it.

It is impossible to predict when the ordinary act of flapping wings will trigger the effects that ultimately lead to foul weather, given the challenge with measuring the chaotic patterns it generates.

Throughout his interactions with the law Zuma’s approach has tended to create or exploit tension between law and politics, and the law-politics nexus assumed centre stage again after the apex court sentenced the former president to 15 months in jail for his contempt of its order to appear before the Zondo commission of inquiry into state capture.

The spree of looting, violence and arson that followed resulted in losses of human life and billions of rand in stock, and huge damage to property and infrastructure. The state has characterised this as an attempted insurrection given the similarity of the pattern of attack and tactics used in guerrilla warfare. Factories, trucks carrying cargo, warehouses and retail stores were casualties. Evidently this was aimed at creating a multifaceted crisis that would have the state, private sector and communities busy on many fronts.

WESTERN CONSTRUCT

Due to these negative consequences questions have been raised about the appropriateness of the judgment of the Constitutional Court, with many people, from known rogues to respected analysts, asking whether the justices ought not to have considered the political storm that might follow before making their final ruling.

Even as the rescission application was under way at the Constitutional Court, the spokesperson for Zuma’s foundation, Mzwanele Manyi, implored the judges to “look out of the window” to see what chaos resulted from their imprisonment of Zuma. Likewise, in a TV interview political analyst Moeletsi Mbeki juxtaposed “whatever benefit [is] derived from jailing Zuma” with the apparent social and economic crisis and asked whether the incarceration was “worth it”. He problematised the notion of constitutionalism and in effect posited that it is a Western construct that SA judges should get over.

The critics of the Constitutional Court judgment can perhaps be grouped under what may be called a “political solution” school, or those who favour a legal solution that is less punitive. However, the political solution thesis is deeply flawed on two fronts. It undermines the reasoning behind limited political power and the consequences of its opposite, and it plays neatly into Zuma’s modus operandi, in which he projects himself as being above the constitutional order.

The idea that the lawmaking and implementation processes of a republic should be limited by a constitution is a vital pillar of democracy. It prevents a “tyranny of the majority” and abuse of power. Beyond the formal politics of government, it seeks to ensure that the exercise of all power, be it by individuals or corporates, is subject to a clear framework of rules that keeps the politicaleconomic system sustainable.

To truly comprehend the consequences of unlimited power and a system in which the rule of law is limited, we only have to look back to apartheid SA and ask whether that is desirable. What happens when those who wield unfettered political power know they can do anything they want without being held accountable? What recourse would those who seek to enforce contracts have against the powerful?

’ACCOMMDATION’

The Free Zuma lobby has focused on the “political accommodation” made between the National Party government and liberation movements in the transition to democracy, when a reconciliatory and restorative approach was chosen, rather than retribution, to bring people to the table and deal with the human rights abuses committed by the parties.

Restorative approaches have been used worldwide to prevent the recurrence of civil wars or political instability, which retribution might trigger, and avoid undermining democratisation processes.

Zuma supporters are quick to cite how the political leaders of the apartheid government, chief among them FW De Klerk and PW Botha, were allowed to escape the might of the law in preference for peace. But SA is now a consolidated democracy. Until recent weeks there were no militia groups whose power was so significant that there was a realistic risk of SA slipping into civil war, despite the threats to the contrary made by some former Umkhonto we Sizwe soldiers. Besides, the constitution is clear that managing political risk falls within the ambit of the executive and parliament, not the courts.

In researching judicial conduct in the US since the 1990s it is clear that there has been an increasing frequency of game theoretic decisions by the courts in anticipation of the veto power of the legislative and executive branches. Mathew McCubbins and Daniel Rodriguez show in their contribution to the 2006 edition of the Oxford Handbook of Political Economy that US court judgments tend to take a form the executive and judicial branches are least likely to veto.

In SA relations between the three arms of the state, or between the law and politics more generally, have only recently been tested to the extent of asking questions about the game theoretic decisions made in exercising legislated responsibilities. Thanks to Zuma, the relations between the executive, parliament, the office of the public protector and other chapter nine institutions, as well as judicial and quasi-judicial institutions, have already been strengthened through litigation.

We can only hope that, much like the butterfly, the Constitutional Court justices recognise that they cannot avoid flapping their wings out of concern that it may result in a tornado elsewhere in the system.

However, they are human, and there may be temptation on their part to prove to the nation that they are not blind to the political and economic chaos that has ensued. For that reason it is not unthinkable that we will see more splits between the justices in their ruling on the rescission application.

If that happens Zuma will have triumphed in his ferocious wrestle with the rule of law in the republic; he will have been able to single-handedly plunge us into a realm of politicallegal ambiguity.

ZUMA’S APPROACH HAS TENDED TO CREATE OR EXPLOIT TENSION BETWEEN LAW AND POLITICS

Mtimka is a lecturer at Nelson Mandela University and executive chairperson at Evoke Primary Research Co-operative. He writes in his personal capacity.