Zuma’s South Africa: A Constitutional Post-Mortem (I-CONnect Column)

—James Fowkes, University of Münster Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Zuma is gone. For many South Africans, a three-word article would be enough.

But for friends of the South African Constitution around the world, this prompts a longer question: what has the Zuma era meant for the South African Constitution?

For nearly nine years, South Africa had an embattled president who could not but look at the rest of the government in terms of its ability to protect himself and his patronage networks. What that has meant for institutions has depended on their ability to contribute to that aim, and their ability to resist. The prosecuting institutions, headed by a presidential appointee, have taken heavy damage under a president who never seem to stop adding to the list of corruption concerns that was already dragging behind him when he stepped into the office. Contrast the Reserve Bank, whose subordination was both less necessary and harder to achieve, and which faced pressure but has emerged essentially unscathed.

The Constitutional Court, of particular interest to constitution watchers, emerges much like the Bank. At no point has its independence been in serious doubt. And it has not survived merely by living to fight another day. The Court never really had to be the last line of resistance nor the most important site of it. Nor did its decisions ever stop power in its tracks (though what court ever does). The ANC’s dominant position could ultimately protect Zuma from parliamentary scrutiny, and he only fell when his party deserted him. Presidential and party power sufficed to keep the corruption prosecutions at bay – though now that he has lost both, the charges are back.[1]

But the Court nevertheless compiled a substantial list of assertive, sometimes creative judgments that blunted and chastened and whittled away at the constitutional defects of the Zuma presidency in highly politicized circumstances. It intervened on four occasions to bolster parliamentary checks and opposition MP powers,[2] and moved to thwart some of the blunter attempts to defang the prosecution institutions on three more.[3] It filled in what was legally an open question by giving the force of law to findings of the Public Protector. This meant that Zuma and the ANC’s majority in Parliament were not entitled to disregard her conclusion that Zuma had to repay money misspent on his private residence and instead either had to comply or appeal to a court.[4] And when the misplaced priorities of the Zuma administration produced structural incompetence that threatened the payment of social grants on which South Africa’s poor utterly depend, the Court responded with the most far-reaching, unqualified and micro-managing structural interdict it has yet issued.[5]

The Zuma era’s impact on the Constitution itself is more scattered. Ironically if essentially coincidentally, it was on his watch that important reforms were made to the judicial structures by the most important amendment to the 1996 Constitution to date.[6] His recall by the ANC before the end of his constitutional term confirms the precedent of Mbeki’s removal the same way in 2008, but I do not share the view that this is an unconstitutional mechanism. Presidencies may end by resignation, and political resignations inevitably come when leaders lose their party’s support. It is, however, evidence of a view within the ANC that it is the party, rather than constitutional institutions, that is the ultimate structure of the South African state.

Zuma’s tenure is also a cause of the current debate about a constitutional amendment to permit uncompensated land reform.[7] It was doubtless inevitable the issue would be re-opened at some point, but it was only a year ago that the ANC rejected doing so.[8] The left-wing Economic Freedom Fighters (EFF), whose proposal raised the issue both then and now, did very well politically out of attacking Zuma’s corruption. Whether the ANC’s shift in stance is a matter of cosmetic populism or newly serious redistributive intent, the tack left has the appeal of both heading off the EFF and doing something to rehabilitate the ANC’s post-Zuma image.

The real significance of the moment, however, does not lie in the prospect of an amendment itself. That may not even necessary: there is lots of unused room in the currently property clause for more redistributive approaches to land reform.[9] And even were an amendment to pass, there is little chance of something akin to the chaotic, unregulated process in Mugabe’s Zimbabwe, which is a better bogeyman here than a serious analogy.[10]

Instead, the significance of the debate lies in the institutional shift it may portend. Since 1994, neither the Constitution nor the Court that has had much to do with the trade-off between redistribution and maintaining a stable investment and property environment. It has been ANC policy that has struck that balance, including the decision to pay market value-based compensation for land reform. The current debate continues that policy effort. But if the ANC no longer feels able to emphasize the protection of property rights to the degree it has done to this point, that issue will quickly go to other institutions, including the Court, and it will bring the broader questions of land reform with it. In itself, that is neither good nor bad. Democrats may welcome a more open debate, and doctrinal lawyers may welcome the prospect that the Court might finally speak to the issue. But it would be a new, untested pattern for managing post-apartheid South Africa’s deepest fault line.

Land reform, however, is a real and important debate, not the essentially negative, damage-control business of dealing with corruption and inattention at the top. With Zuma now gone, there follows the three-word question: is it over?

If this were a case of removing the bad apple, it would be, but Zuma was not the start of the rot. The ANC is still the closest thing South Africa has to a national mirror, and what it reflects here is not ultimately about a brave freedom fighter who turned to profligacy in office. It reflects the reality that for many South Africans, especially outside the big cities, the private economy still offers no greater prospect than menial wages and a subordinate status not always easy to distinguish from the apartheid era. That can lead to grand corruption, but more commonly it simply makes state jobs and contracts the only routes out of the lower class, in a way that is often legal but erosive of merit appointments and internal party accountability. It is out of this that Mbeki and Zuma built their patronage networks, and it informs much local branch activity in a party in which local branches have real power. The narrowness of Ramaphosa’s election as ANC president over Nkosasana Dlamini-Zuma, President Zuma’s preferred candidate – 2440 votes to 2261 – is telling. Ramaphosa’s rise to power shakes up the balls, but not necessarily the boxes into which they will settle.

The question, then, is not whether it is over but how much the pattern will repeat itself.

Ramaphosa’s wealth is the most commonly-cited argument that he will not be vulnerable to corrupt friends as Zuma was. But since he obtained it more by political connections and deal-making than creative entrepreneurial activity, it is more uncertain how those lower down party structures will interpret it. He is also only one member of the ANC leadership with an as-yet uncertain political following of his own – how much of his (narrow) victory margin was just an anti-Zuma calculation with an eye to the national elections next year?

Heart can be taken, however, from four things, starting with that electoral nervousness. If Mbeki’s removal was above all about internal ANC resentment, Zuma’s may above all be about the growing awareness that even the ANC can lose elections. Its chastening showing in the 2016 municipal elections, its worst ever electoral performance, seems to have had the effect one would expect on what has long been a highly effective political machine.

Second, South Africa’s opposition came of age in the time of Zuma, as its civil society did in the Mbeki era. The two leading opposition parties – the EFF and the current official opposition, the Democratic Alliance – together took more than a quarter of the 2014 national vote and a whisker less than a third of the 2016 poll. The 2016 number may be soft – Zuma was a soft target – and the opposition parties’ differences make any alliances shaky in any case. But the numbers matter less than the simple fact that there are now two issue-driven parties with black leadership and policies calculated to appeal to black voters, an obvious precondition for majority appeal that has nevertheless taken a generation.

Third, South Africa got through the Zuma era with real institutional damage but without ever actually coming close to democratic collapse, understandably agitated rhetoric and tactical hyperbole aside. Whether the institutions will recover remains to be seen and is the thing observers should most watch for at the start of the Ramaphosa administration. But while Zuma and his transparently selfish agenda were not the strongest of threats, it still matters that lots of important lines held and South Africa’s institutions, collectively, outlasted Zuma’s attempt to be above them.

And finally and most elusively of all, there is the South African public. It was Mbeki’s fate to have to tackle the hard and divisive questions Mandela’s nation-building could gloss over. Those questions have by no means gone away. But I wonder if in the reaction against Zuma ordinary South Africans have not sensed more common ground than they have felt since Mandela left. All this is oh-so intangibly optimistic, but then that is in the nature of what holds nations together. Are the three words ‘he is gone’? Or, just perhaps, ‘we are back’?

Suggested citation: James Fowkes, Zuma’s South Africa: A Constitutional Post-Mortem, Int’l J. Const. L. Blog, Mar. 28, 2018, at: http://www.iconnectblog.com/2018/03/zumas-south-africa-a-constitutional-post-mortem-i-connect-column/

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[1] 16 charges of corruption, racketeering and money laundering were re-instated last week: Jeanette Chabalala, ‘NPA to prosecute former President Zuma’ https://www.news24.com/SouthAfrica/News/npa-reinstates-charges-against-former-president-jacob-zuma-20180316. (16 March 2018).

[2] Oriani-Ambrosini v Speaker of the National Assembly [2012] ZACC 27 (right of minority MPs to have bills debated cannot be subject to majority approval); Mazibuko v Sisulu [2013] ZACC 28 (right to table a motion of no confidence in the President cannot be subject to majority approval); Democratic Alliance v Speaker of the National Assembly [2016] ZACC 8 (limits in the name of robust parliamentary debate on power to remove MPs from the chamber); United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21) (vote of presidential no-confidence can be by secret ballot).

[3] Glenister v President of the Republic of South Africa [2011] ZACC 6 (invalidating aspects of legislation restructuring of the anti-corruption unit on the grounds that it did adequately safeguard its institutional independence); Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24 (invalidating the President’s appointment for head of the National Prosecuting Authority on the grounds that the President had not taken into account evidence that his appointee had lied under oath); Helen Suzman Foundation v President of the Republic of South Africa [2014] ZACC 32 (ordering further adjustments to the legislation rewritten to comply with the Glenister ruling).

[4] Economic Freedom Fighters v Speaker of the National Assembly [2016] ZACC 11.

[5] Black Sash Trust v Minister of Social Development [2017] SACC 8.

[6] Constitution Seventeenth Amendment Act, 2012; Superior Courts Act, 2013.

[7] The EFF resolution calls for a debate, inter alia, on whether it is necessary to amend the Constitution to permit land expropriation without compensation in the name of speeding up South Africa’s currently slow process of land reform. For the text of the resolution and a report on the parliamentary debate, see Jan Gerber, ‘Ramaphosa: Not revolutionary to tell people to occupy land’, https://www.news24.com/SouthAfrica/News/ramaphosa-not-revolutionary-to-tell-people-to-occupy-land-20180314 (14 March 2018). The resolution was overwhelmingly approved, with support from the ANC, the EFF and several smaller parties, and the issue will now go before Parliament’s Constitutional Review Committee. For a current overview, see Khulekani Magubane, ‘Understanding the ABCs of SA’s land expropriation debate’ https://www.fin24.com/Economy/understanding-the-abcs-of-sas-land-expropriation-debate-20180313-2 (13 March 2018).

[8] The previous EFF parliamentary motion, in February 2017, was rejected 261-33, with the ANC voting against.

[9] Constitution of the Republic of South Africa, 1996, s 25 treats market value as only one factor to be considered when assessing the constitutionality of an expropriation, explicitly obliges the state to pursue land reform measures, and provides that no part of s 25 may impede land form measures provided they pass the general limitations clause. A policy of uncompensated land reform would thus essentially have to pass a proportionality test.

[10] Which has not, of course, stopped commentators from immediately drawing the comparison: see e.g. Lorenzo Montanari, ‘Fight rages over land reform in South Africa’, https://www.forbes.com/sites/lorenzomontanari/2018/03/14/fight-rages-over-land-reform-in-south-africa/#371e78ee71f3 (14 March 2018).