As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
There seems to be a sharp division amongst the chattering classes about the Jacob Zuma tsunami. The behaviour of his supporters during the conference and the election of his “top six team” seems to mean different things to different people. Some newspaper editorials – including the local Cape Times – agreed with pro-Mbeki supporters that the rowdy crowd was thuggish and essentially anti-democratic because it did not want to allow those to speak with whom it did not agree and worries about the Presidency of a ethically challenged man like Zuma.
On the other hand, some commentators like Steven Friedman and Ryland Fisher who might not think highly of Jacob Zuma as a man, nevertheless scoffs at all this hand wringing and “breast beating”, arguing that what we saw in Polokwane was not mob rule but democracy in action. So what if the crowd was a bit unruly, they argue – at least they were not too scared to express their views and what they want.
I am going to sound like Justice Albie Sachs now, but it seems to me that both sides are both right and wrong.
I am saying this because on the one hand, while the election in Polokwane has opened up a possible democratic space, the election itself had very little to do with real democracy. In a real democracy candidates are allowed to put themselves forward, to explain their positions and to canvass for support, something that is supposedly not part of the ANC tradition. In the past, ANC leaders were “elected” by delegates after “consensus” was reached by party bosses about who should lead the party. Branches were then informed about this and they duly nominated the people for “election”. This is called democratic centralism and it allowed those in charge of the party to impose leaders on the members.
If this approach to “democracy” had been followed by the ANC, the leadership of the party would have “decided” to give President Mbeki a third term as President of the party after he had indicated to them that he was available to continue serving the ANC. Mr Zuma would have been redeployed to the ambassadorship of upper Mongolia and that would have been the end of the matter.
This fundamental undemocratic attitude stems from the view that the ANC is a vanguard party in charge of the National Democratic Revolution. This is why the President suggested on Sunday that it might be better to have a smaller, more disciplined (hence obedient) membership than a larger ANC membership that is more disobedient and would not obey the longstanding democratic centralism traditions of the movement.
To the extent that the pro-Zuma lobby in Polokwana has exposed this absurd anti-democratic “traditions” of the ANC for what it is: a self serving device in the hands of the elite to act as gatekeepers to ensure the dominance of a certain elite with certain values and to the extent that they rebelled against it, this is a victory of sorts for democracy.
But Zuma’s candidacy was made possible in part by this essentially undemocratic “tradition”. Because there was a perception out there that the President was houding him, he could campaign without campaigning for the Presidency. None of the other possible candidates for the Presidency could do this. His victory was therefore not a democratic victory in the true sense.
My worry is that Mr Zuma and those who support him are no more democratic in their thinking than Thabo Mbeki. What will happen at the next ANC conference? Will there be open contestation for positions or will those who oppose Zuma be vilified as security agents of the apartheid state (as Bulelani Ngcuka was after making the notorious prima facie annoncment) or class enemies of the people? Fikile Mbalula does not look like a man who reads John Stewart Mill every night before bedtime.
And yet, what a relief that we will now not go down the road of so many other countries where one man clung to power for ever and ever. The silver lining is that I heard many Zuma supporters chant “Zuma for ten years”, which seems to establish a very healthy principle that no man or woman is indispensable and that no one should overstay their welcome.
What is needed now is for all of us to claim the democratic space that has been opened up by the seismic events in Polokwane and to push back against any attempts by the new guys to silence us with slander and intimidation. The first test will come when Mr Zuma is charged with corruption and some of us will remind the nation that the highest court in the land had found beyond reasonable doubt that Mr Zuma took more than one million Rand from a convicted fraudster and then did at least four favours for him in return.
Maybe that is what we can take from all of this: freedom and democracy is not given or possessed by a party but by all of us. We can take it and fight for it. If we do not, we will not have it for long – no matter whether Helen Zille or Jacob Zuma or that man with the funny lips from the Freedom Front Plus rules South Africa.BACK TO TOP