Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
The ANC and scrapping of the Scorpions
Steven Friedman has written a characteristically thought provoking piece in the Business Day today about the scrapping of the Scorpions, arguing that the ANC is not as democratic as it should be.
ANC leaders are right that they can comfortably win re-election despite scrapping the Scorpions. But they are wrong to say that this means that they are taking democracy seriously. Democracy is a system in which most citizens are meant to get their way, not most activists. Politicians who cynically ignore their voters because they know that they can be taken for granted cannot claim a serious commitment to democracy.
Party leaders have a ready reply. Nowhere in the world, they insist, are politicians obliged to go back to their electorate to check every decision. If you vote for a party but don’t join it, you must expect others to decide for you.
But citizens do not lose their rights because they do not join a party. Of course ANC leaders are not forced to ask their voters what they think. But leaders who insist that the only decision-makers in the ANC who matter are the 6% of supporters who join the movement cannot credibly claim that they are reviving the voice of the grassroots citizen.
Parliament’s task is to do what most citizens want — not what most members of a party want. Unless and until the new ANC leadership show an interest in what most of their voters want, their claim to democratic commitment within the ANC is as tenuous as that of the leadership they have replaced.
But I am a bit ambivalent about this view. Two years ago when Parliament had to decide on the adoption of the same-sex marriage law, most ANC voters were also against this move, yet in the end the ANC dominated Parliament adopted the Civil Union Act. Sometimes a majority party must do things not supported by its voters for the greater good and to implement the values of the Constitution.
Perhaps the Scorpions case is different because it might well be argued that the scrapping of the Scorpions is not based on principle or on a desire of the ANC to expand and protect the constitutional guarantees of citizens, but instead to protect their own members from prosecution for corruption.
Nevertheless, a majority party who believes in human rights may well sometimes act in a way not in line with the wishes of the majority of its citizens. The trick is to know when to do so and when to give way to the wishes of the majority. In the case of the Scorpions the ANC clearly got it wrong.
