Constitutional supremacy deals Zuma a mortal political blow

Johannesburg – As I am writing this week’s column, on a quiet Wednesday afternoon, the winter sun deceptively beautiful here in Johannesburg before the night’s inevitable cold, I have no way of knowing whether former president Jacob Zuma will be in jail by the time you read this analysis.

Yet, despite that uncertainty, I am a very happy citizen.

That is because the moral authority of the Constitutional Court has been powerfully asserted in the judgment that found Zuma guilty of contempt of court and sentenced him to direct imprisonment for 15 months as just and equitable punishment for his legal sins.

It is impossible to exaggerate just how crucial this judgment is in the life of our relatively young democracy.

As I explained to a British journalist, we took a massive step in 1994 when we abandoned parliamentary sovereignty for constitutional supremacy.

These concepts are familiar to scholars of politics and law, and to other citizens who are politically engaged, but not to everyone. Yet they are crucial concepts with which to make sense of the importance of what has played out over the past few days. Before democracy, a racist parliament lacking in moral authority had the final say in formulating laws that were binding on us all despite the wicked nature of the apartheid political system.

When we ditched that architecture in 1994, we effectively committed ourselves to a society in which the constitution – and neither parliament nor the executive arm of government – reigns supreme.

We negotiated hard, across our political differences, because we knew that the constitutional text that we would ultimately adopt in 1996 would be binding on the state and on private citizens in our relationships with each other.

The Constitutional Court, in turn, is the institution entrusted with the precious task of ensuring that the constitution is the supreme law of the land.

Any actions or laws inconsistent with the constitution must be set aside, and remedied. The constitution is an expression of our aspirational selves, and we cannot take lightly the content of this critical foundational text. What Zuma did by wilfully ignoring the previous order of the Constitutional Court that he should go and answer questions at the Zondo Commission of Inquiry into State Capture is that he thereby directly assaulted the authority of the judiciary in general and the constitution, and Constitutional Court, in particular.

His various speeches scandalised the court and underscored his contempt, leaving no room for doubting his disregard for the principle of constitutional supremacy.

This is a uniquely serious assault from someone who, on two occasions, had sworn, as president of the country, to uphold the letter and spirit of the constitution.

He was so defiant of the order to cooperate with Justice Raymond Zondo that both a fine and a coercive order aimed at getting him to cooperate belatedly would have been pointless.

That left the majority of the justices convinced that the only way to assert the authority of the judiciary is to send him to jail. Failure to do so might have inspired others to also undermine the authority of the judiciary.

It was a truly cogent judgment that was necessitated by the facts of the case.

It is unlikely to set a precedent that will be relied upon anytime soon because the set of facts were so unique that you have a better chance of winning the lottery than coming across an analogous set of facts warranting the same punishment soon.

This is why the judgment is politically important regardless of how the execution of the order plays out.

Obviously, judgments are of little ultimate value if they are pamphlets that courts read out, but which citizens ignore. The police would have to bolster the authority of the court and arrest Zuma if, by the end of the weekend, he had not yet voluntarily handed himself in.

Despite this practical necessity of compliance with the order, the details of the constitutional analysis by Justice Sisi Khampepe itself amounts to an assertion of moral and political authority of the judiciary.

Also read: Historic week for SA after Constitutional Court sentenced Zuma to prison

ANC again bows to Zuma’s demands

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