‘There are seasons in every country when noise and impudence pass current for worth; and in popular commotions especially, the clamours of interested and factious men are often mistaken for patriotism.’
Publius Letter, II (1778) — Alexander Hamilton
From the moment the Constitutional Court handed down judgment in former president Jacob Zuma’s contempt of court matter, one could almost feel the media machine starting to churn in the background.
The days after the judgment were always going to be noisy. So, was it any surprise that Zuma spin doctor and defender-in-chief, Carl Niehaus, along with other unprincipled enablers, have stage-managed a spectacle? Watching any of the weekend media coverage, one could be forgiven for believing that our country was in the middle of a siege or an insurrection.
Zuma and his legal travails have dominated the headlines, with the former president doing his song and dance routine, with the usual insults hurled at all those who have sought to hold him to account, including former Public Protector Thuli Madonsela and (now) acting Chief Justice Raymond Zondo.
Journalists have descended on Nkandla and continue to provide a blow-by-blow account of whatever moves there.
Zuma has been portrayed as a victim even when the facts indicate a very different series of events.
In the 2016 Nkandla matter, he showed himself to be entirely devoid of respect for the Constitution. Then, Chief Justice Mogoeng Mogoeng said of the responsibilities of a head of state:
“He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project. The president thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”
As we listened to months of evidence at the Zondo Commission, it has been clear that Zuma will do whatever is possible to evade responsibility for State Capture and the nine wasted years which left the state coffers bare. In a similar vein, he has used every trick in the book to delay his fraud and corruption trial.
The thread is therefore a common one; the evasion of accountability which is the way of the cowardly and the corrupt. Like all populists, Zuma has enlisted cheap slogans and emotions to distract from the facts. Now, faced with the prospect of prison, he is again seeking to exploit divisions within the feckless ANC to protect himself from scrutiny whether it is before the courts or the Zondo Commission.
On Sunday afternoon, news reports stated that more than 1,000 people had gathered at Nkandla in support of Zuma. Feeding the media frenzy were Zuma’s legal representatives who also appeared on stage with him at Nkandla. South Africans watching this would have been rightly outraged given the open flouting of Covid-19 restrictions on gatherings and the crowd’s defiance of the police.
Last year Collins Khosa of Alexandra died at the hands of police and SANDF members when he was accused of drinking beer in his back yard, an act which was allegedly in violation of lockdown regulations. Khosa died of blunt force trauma to his head. Many others, mostly those who are poor and already on the margins of this society have been beaten or humiliated for minor incursions of lockdown rules.
On Sunday afternoon, the National Joint Operational and Intelligence Structures (NatJOINTS) released a statement “enhancing deployment of security forces in KZN” and renouncing those “undermining the authority of the State including flouting of the Disaster Management Act.” The statement went on to remind people “that the country is still under adjusted Alert Level 4 lockdown”. The statement ended with a rather lame assertion that “any person organising or being part of gatherings will also result in people being fined or jailed or both”.
It’s hard to take this seriously when these gatherings are being organised in full view of the police and are being beamed to the country’s living rooms, yet they continue unabated. It’s also hardly a secret who the organisers are, dressed in military fatigues and themselves breaching the law. This past week Minister of Police Bheki Cele said that anyone found breaching lockdown regulations would be imprisoned or fined. These words are truly hollow when they do not apply to the crowds gathered at Nkandla. But we are used to the meaningless words spewed forth by Cele. The law operates selectively on his watch.
If this were not so serious, it would be a farce.
The drama and the mostly unthinking media coverage of events at Nkandla have almost precipitated a sense of crisis. News bulletins have provided coverage that is largely decontextualized while on social media clickbait mostly wins the day; 24-hour news has provided little by way of penetrating questions and has focused rather more on breathlessly covering Zuma and his coterie of supporters’ lies and misinformation. One might ask, for instance, who are the people gathered at Nkandla and who has organised the gatherings? The gatherings are hardly a spontaneous outpouring of support for Zuma, as many would have us believe.
To be clear, this is a neatly organised, stage-managed spectacle designed to intimidate the judiciary and the democratic institutions of the state. We are in the middle of a serious health crisis. In certain Gauteng hospitals, our doctors and nurses are administering oxygen in parking lots as hospitals are full. Vaccines are being rolled out far too slowly and the wheels seem to have come off the pandemic response.
It is unimaginable yet true that the news headlines are largely dominated by Zuma and his ongoing attacks on the judiciary and his blatant disregard for the rule of law. While some thoughtful coverage has manifested, mostly, Zuma’s travails have been reported uncritically with very few questions asked about how Zuma has found himself in this position.
We know that suspended ANC Secretary-General Ace Magashule whisked himself to Nkandla this past weekend. No surprises there. Magashule faces his own legal Sword of Damocles and would stand to benefit from any chaos and instability caused by Zuma. It would also be in Magashule’s interests to undermine the judiciary and the rule of law.
Of course, it did not help that a news reporter referred to Magashule as one of the “dignitaries” who arrived at Nkandla. When Zuma addressed his supporters, it was billed as his “address to the nation” by some, elevating him to what the same reporter called a “statesman”.
Words matter and how the media reports on events matters. Zuma’s playbook is classic populism and he has weaponised the media to good effect. As in the Trump years, the media cannot simply hide behind the rather unsatisfactory, “we are simply covering events”. At some point, the thoughtless coverage, without caveats, presents a problem to democracy. This is especially so when lies and misinformation are broadcast in an untrammelled fashion. Sensationalism has no place at a moment such as this.
Add to this the incitement by Carl Niehaus, himself someone of most dubious ethical standards, and it’s a toxic petri dish. Populists find their purpose in chaos and distracting us all from the facts before us.
Zuma, while bemoaning the legal system, has sought to bring us to the absolute edge of crisis repeatedly. This is not the first time he has put his own interests ahead of the country’s, so it is no surprise that he would foment anger and chaos and encourage, even if indirectly, the mass gathering of people during a time of Covid-19. After all, his party had to plead with him to step down after he was recalled and even then, his announcement to the country happened in the wee hours and far later than was scheduled. This was disregarded to the very end even as he left a country whose institutions had been ravaged by corruption and State Capture.
That the ANC itself postponed its NEC meeting and deployed some of its members to KZN has added to the heightened sense of drama. It issued a statement saying it would be studying the Constitutional Court judgment. If the ANC was coherent in its responses and not as divided as it is, it would have issued a simple statement in support of the Constitutional Court and its judgment.
Instead, it has equivocated with contradictory responses from individuals. This is a party largely unfit for purpose and so we could not expect it to deal with this matter in any manner other than clumsily. It is the ANC itself that has failed to discipline Zuma for his misdeeds and allowed him to continue to act with impunity. It has acquiesced in the face of his insults to the judiciary even while he claims to want to uphold the rule of law.
Amid the noise, it is therefore easy to forget that the essence here is that this is a matter between Zuma and the courts. It should therefore be allowed to run its course. Any instability or violence should be met with the authority of the state through police action against those who openly incite violence for instance or those who flout lockdown regulations.
Zuma, aided and abetted by unprincipled legal counsel, has now launched an application for rescission of the Constitutional Court judgment. That is bound to receive short shrift, but since the application was made, it will be heard in the ordinary course on 12 July. Surely Zuma cannot seek to gain from a rescission application what he might have achieved via an appeal, had he been able to make one?
In the meantime, the arrest warrant of 30 June is still live and since Zuma has not presented himself for arrest, he has three further days before he ought to be arrested.
This will be a key moment in this drawn-out saga. Will the organs of state work to undergird the rule of law or will they prevaricate? Typically, Zuma has created sufficient confusion by pushing civil procedure to the limits that the police are likely to feign ignorance about arresting him in terms of the Constitutional Court order.
That brings us squarely to the uncomfortable place where law meets politics. It is a place we need not have arrived at and which will need a preternatural level of leadership from President Ramaphosa as head of state. It will require him to instruct his minister of police to do as Justice Khamepe ordered and to reaffirm his and his government’s commitment to the rule of law. Unfortunately, there is no middle ground position for Ramaphosa to take on this issue. It goes far beyond Zuma and as president of the republic, his solemn duty is to the Constitution itself and to the millions of South Africans who watch while Zuma cocks a snook at the judiciary and our democracy itself.
At this point, Madiba’s words at the adoption of the final Constitution in 1996, still ring true,
“Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”
It is important that we remain focused and calm over the next days and that we parse what is before us carefully. We should not be held hostage to the tired Zuma playbook and the politics of spectacle unfolding at Nkandla. Now is the time to take on the political forces who would divide us and break down the edifice of our constitutional democracy.
Zuma, the shamed man from Nkandla, has betrayed not only the Constitution, but its promise. We should not forget that even when “noise and impudence pass current for worth”. DM
