12 July 2021

An Ordinary Result for the Rule of Law

South Africa’s former President Zuma begins his prison sentence

This is not a victory for the rule of law. It simply is the rule of law.

Late on Wednesday 7 July, former South African President Jacob Zuma turned himself in to police. He thus just about complied with the Constitutional Court’s judgment on 29 June, which found him in contempt of court and sentenced him to 15 months’ imprisonment.

For readers unfamiliar with the background: in January 2018 South Africa set up a commission of inquiry to investigate allegations of state capture during Zuma’s presidency (2009-2018). Zuma persistently refused to co-operate with the Commission, which finally obtained an order from the Constitutional Court, in January this year, obliging him to do so. When his refusal to co-operate continued, he thus put himself in contempt of court.

In fact, under the Court’s order, Zuma should have surrendered himself by Sunday 4 July. 7 July was the date by which the Minister of Police was ordered to arrest him if he did not. A large police contingent was on its way to Zuma’s residence when he turned himself in.

But Zuma is nevertheless now behind bars, within the Court’s deadline. South Africa has avoided the prospect of an arrest amidst a violent confrontation between his supporters and police. (As it is, ongoing protests in KwaZulu-Natal, Zuma’s home province, and now in Johannesburg, have blocked roads and set debris alight. Police are responding.)

And in Zuma’s voluntary submission, South Africa has perhaps gained something else.

The rule of law can be vindicated dramatically. In 1957, US President Eisenhower deployed troops from the 101st Airborne to Little Rock, Arkansas, in response to Governor Orval Faubus’ refusal to comply with the Supreme Court’s order to integrate racially segregated schools. It is a moment US lawyers still speak of in solemn voices, and that current US Supreme Court Justice Stephen Breyer likes to call ‘a great day for the rule of law’.

And so it was. But while that sort of intervention is sometimes regrettably necessary, the rule of law cannot for very long be the rule of the 101st Airborne.

The rule of law is vindicated better by more mundane events. Dramatic interventions may rescue it, like emergency surgery in a hospital. But that is where life is saved. It is not where life is lived. The life of the rule of law, its healthy life, must be an ordinary, everyday thing.

A man was sentenced by a court to prison. He does not agree with the sentence. A tweet from his foundation has called it ‘jail without trial’ and a ‘travesty of justice’, a reference to  concerns about process that led two justices to dissent from the Court’s judgment. He is attempting to challenge the sentence by legal means (on which the Constitutional Court held a hearing on Monday 12 July). But he turned himself in all the same.

Of course, it would be naïve to think that his decision was only about the rule of law. The police were coming. There was also surely a calculation that Zuma looks a better martyr by quietly going to prison. (His daughter promptly began the inevitable Robben Island comparisons, referring to the place of imprisonment of anti-apartheid leaders, including Nelson Mandela and, from 1963 to 1973, Zuma himself). Similarly, his political opponents will not exclusively welcome his imprisonment out of concern for the integrity of the judiciary.

But this is normal. The rule of law is a set of basics, in terms of which the disorderly forces of real life should operate. The Court’s order, once made, held a significance that shaped all those forces around it. Had Zuma not turned himself in, the order would simply have shaped events in another way, and he knew it. That is why he turned himself in.

When he did, the governing party of his country, of which he is a member and past president, ‘restated its unequivocal commitment to and defence of the Constitution, in particular the supremacy of the Constitution, the rule of law and the independence of the judiciary, amongst the founding principles and values of the Republic of South Africa.’

This may be seen as mere rote talk, not the real thoughts of a divided party or of the anti-Zuma faction that currently holds the balance of power. Doubtless it is partly just a matter of press language, though those who see it as only that do not fully understand the ANC.

But even if were just a ritual form of words, to state this, to re-state it at this moment, is to reinforce it. That is how rituals work. And the ritual here is that respect for the constitution and the rule of law is the frame in terms of which reactions to court orders take place. It is this ritual which shaped Zuma’s choices last week.

Jacob Zuma was not an ordinary litigant. His actions were extraordinary, and they met with an extraordinary order from the Constitutional Court. But his compliance, and the words of the ANC’s statement, are not extraordinary. They are ordinary, in an extraordinary situation. That is the rule of law. Long may it be ordinary in South Africa.

SUGGESTED CITATION  Fowkes, James E.: An Ordinary Result for the Rule of Law: South Africa’s former President Zuma begins his prison sentence, VerfBlog, 2021/7/12, https://verfassungsblog.de/an-ordinary-result-for-the-rule-of-law/, DOI: 10.17176/20210713-020003-0.

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