Several South Africans have rejected the Constitutional Court’s refusal to hear the Department of Correctional Services’ appeal against the Supreme Court’s declaration that its granting medical parole to former President Jacob Zuma was unlawful.
Many of us prefer the supremacy of the rule of law to an approach centered on force. The Court denied the application on the grounds that it had no reasonable prospects of success, and upheld the decisions of the Supreme Court and the Supreme Court of Appeal (SCA).
However, the SCA disagreed with the Supreme Court on whether re-imprisonment would be automatic and gave the Chamber some leeway to decide because Zuma had served time in prison and under parole conditions in Nkandla.
However, the court’s decision may have raised the possibility of Zuma’s re-imprisonment as it should be a serious consideration when the administration considers the full implications of previous sentences as Zuma has been on parole which has since been declared illegal.
A number of things must be taken into consideration as the nation debates this issue. First, Zuma was imprisoned for nearly two months despite a show of force by his ANC faction who vowed he would not be caught under their watch.
Second, our judicial system faced an important test throughout the debacle by applying itself only to questions of legality and proper administration of the rule of law, despite the precarious political situation created by their Zuma prison sentence.
Third, the erroneous assumption that the Commissioner of Correctional Services can grant medical parole regardless of the recommendation of the Medical Parole Board has been duly reprimanded and corrected.
These three major victories will always act as a deterrent to any powerful figure in the future so that they do not abuse their power as they will face the full force of the law. Despite this, Zuma’s further incarceration should not be a last resort because the message that the strong can be imprisoned cannot be conveyed further than it already was.
The bigger message to send to Zuma and all the avowed proponents of a political approach centered around power rather than the rule of law was that the legal system takes precedence over political power. The bold re-imprisonment proves just that.
Yet we have also seen how badly mean opponents of rules-based participation can be and how powerless our state has been against the wave of seemingly organized looting that has occurred as a result of Zuma’s imprisonment.
After the spate of looting, our judiciary has shown that its mandate is the narrow path of law and not the management of how its rulings affect politics or national security. From the application for annulment considered by the Constitutional Court, to the approval processes for applications for private prosecutions or the denial by prosecutors or judges of the issue of Zuma’s unlawful medical parole, the judges have presented themselves to the merits of the cases before them and delivered decisions that show no fear or favour. mostly.
That is why it is time to let Zuma and all his anti-rule of law supporters out of the system as it already appears to be. Zuma has been a powerful battering ram against the constitutional integrity of our system of government.
There is hardly any institution that Zuma has not wrestled with. He tested every avenue in the book to the point of abuse and exhaustion of the system.
But our idealized notions of what ought to be accompanied are also accompanied by a calculated sense of the costs of the battles being waged against real politics and security. In this sense, total cost-benefit assessments must be made.
Whatever considerations would be made by the Department of Corrective Services, another Zuma incarceration would have to happen if only it was carefully considered, if it had to be done at all. Our security services must assess risks based on the intelligence at hand and advise what is possible.
I doubt Zuma’s faction still has the political-economic capital to achieve the coordinated attacks that followed the arrest of the former president. So perhaps the probability of unrest erupting again is medium to low. But such a probability must be determined on the basis of evidence, not a probability analysis out of thin air. Our country seems to be a constant carrier of conflict.
In addition, Zuma is very old and has lost a lot of fights. A little reprieve not only allows him to enjoy his retirement in relative peace, if that’s what he wants anyway given his continued activism and recent demotion to join the SA National Civics’ leadership structures at the provincial level, but it also gives the country more room to think in an environment that does not Zuma will be a dominant factor in our politics. He has been a divisive figure for more than 20 years in essence. When do we calculate our losses or “take profits” and move on?
• Mtimka is a lecturer and political analyst at Nelson Mandela University and CEO of the South African Political Risk Institute. He writes in his personal capacity.