Respect for the constitutional order has been gradually eroded under President Zuma.


Children run past a mural of Nelson Mandela and other freedom fighters in Soweto. Photo: Jeff J Mitchell/Getty
Children run past a mural of Nelson Mandela and other freedom fighters in Soweto. Photo: Jeff J Mitchell/Getty

South Africa’s most trusted liberal newspaper, the Mail & Guardian, has published an editorial unlike any in the last 20 years. “SA’s democracy is under attack,” ran the headline.

It was sparked off by what the paper described as a “bombshell”dropped by the Chief Justice of South Africa, Mogoeng Mogoeng. In a lengthy interview he alleged that there had been what he called “very desperate attempts” to frame him for “criminal acts you can’t even begin to imagine”.

The Chief Justice explained how his official vehicle had been involved in an attempted hijacking and that he had allegedly raped a prostitute. As if this was not enough,h Justice Mogoeng Mogoeng revealed that three judges of the Constitutional Court had been accused of being spies for the CIA.

The Mail & Guardian laid responsibility for these smears at the door of the state. Under President Jacob Zuma, it declared, “South Africa has been treated to a mind-boggling display of executive contempt for the judiciary”.

This message was reinforced by what happened when Sudan’s President, Omar al-Bashir, came on an African Union summit visit. A campaign group obtained a court order that he should arrested and be sent to the International Criminal Court, since the ICC has issued a warrant for war crimes against the Sudanese leader. But instead of at least detaining al-Bashir until the case could be heard, he was swept off to the Waterkloof military air base and flown out of the country. All this despite a court order expressly forbidding his departure.

The ruling African National Congress explained that arresting a fellow African head of state on South African soil would be tantamount to a “declaration of war”. Instead of obeying its own courts the South African government went on the offensive, suggesting that “the ICC is not the court we signed up for. It has diverted from its mandate and allowed itself to be influenced by a powerful non-member…”

Once the African National Congress boasted about the excellence of the South African Constitution. It was one of the party’s proudest legacies. Lawyers like Oliver Tambo and Nelson Mandela were proud defenders of the judiciary. Under Mandela’s presidency the legal process was scrupulously observed.

President Thabo Mbeki was also careful to obey the judiciary. When the Constitutional Court ordered that laws preventing same sex marriage were unconstitutional, Mbeki forced the unpopular measure through Parliament, despite opposition from his own party.

Respect for the constitutional order has been gradually eroded under Zuma.

The ANC Youth League and the South African Communist Party has announced it plans a “massive” march against the judiciary. Solly Mapaila, the Communist Party’s second in command, described the legal system as “a superinstitution that accounts to no one”.

The ANC’s fading support

Behind these attacks lies a simple reality: the ANC’s once rock-solid hold on power is gradually fading. Its leaders and their supporters have become edgy and insecure.

This has been accompanied by a degree of soul-searching.  The party’s allies in the Communist Party now acknowledge that they made a mistake in creating a cult around Zuma. He was “hero-worshipped” and this has weakened the ANC.

A meeting of the ANC-Communist Party-Trade Union alliance was held over the weekend. A leaked paper prepared for the meeting laid out the difficulties the movement faced.

“All the components of the alliance are weak,” said the report from the Alliance secretariat, “differing in degrees and extent of their crisis. Co-ordination among the alliance partners, despite regular secretariat meetings, seldom translate into alliance programmes. Internal fights should be resolved with greater urgency as they weaken the movement and its capacity to defend the revolution.”

There is a real fear in the ANC that not only will the party not take the Western Cape from the opposition Democratic Alliance in next year’s local elections, it could lose another province – possibly Nelson Mandela Bay (around Port Elizabeth) or Gauteng (around Johannesburg)

These fears and insecurities are driving the party to attack anyone who stands in its way. If this includes the judiciary and damages the constitution in the process, then so be it.

Opposition leaders are more sanguine about what is taking place. Speaking off the record one said: “If the ANC was not attacking the legal system as it loses support it would suggest the judiciary is not holding the executive to account.”

Certainly South Africa has a robust civil society that buttresses its judiciary and will defend the rulings of the Constitutional Court. After the Sudanese leader was allowed to slip out of the country the Law Society put out a statement criticising the executive. The Society said this was part of what it described as a “clear trend” of undermining the Rule of Law and disregarding court orders.

These are worrying developments. As the ANC becomes weaker it may flail around to prop up its declining popularity. It was only after Robert Mugabe lost a referendum in 2000 that he launched his programme of land seizures. It was a populist measure, designed to boost his flagging support. Might the ANC follow a similar path if power begins to slip from its grasp?