The Constitutional Court’s refusal to entertain the appeal by the department of correctional services against a high court declaration that its granting of a medical parole to former president Jacob Zuma was illegal has been positively received by many South Africans.
Many of us prefer the preeminence of the rule of law over a power-centric approach. The court dismissed the application on the grounds that it had no reasonable prospects of success, upholding the rulings of the high court and Supreme Court of Appeal (SCA).
The SCA however had differed with the high court regarding whether re-incarceration would be automatic and granted the department some space to decide because Zuma did serve some time in prison and under parole conditions in Nkandla.
Nevertheless, the court’s decision may have raised the possibility of Zuma’s re-incarceration as it must be a serious consideration when the department weighs what the full implications of the previous judgments were as Zuma has been on a parole that has since been declared illegally granted.
A number of things have to be borne in mind as the nation debates this issue. Firstly, Zuma was jailed for roughly two months despite a show of force by his faction in the ANC which had vowed he would not be arrested under their watch.
Secondly, our judicial system has stood an important test throughout the debacle by applying themselves only to questions of legality and proper administration of the rule of law, despite the untenable political situation that resulted from their judgment to incarcerate Zuma.
Thirdly, the erroneous assumption that the commissioner of correctional services could grant a medical parole regardless of the recommendation of the medical parole board has been duly reprimanded and rectified.
These three major victories will always serve as a deterrence to any powerful figures in future not to abuse their power because they would face the full might of the law. That notwithstanding, further incarcerating Zuma should not be a last resort consideration as the message that the powerful can be jailed cannot be conveyed any further than it already has.
The biggest message to send to Zuma and all the avowed proponents of a power-centric rather than a rule-of-law-based approach to politics was that the legal system has preeminence over political power. The daring re-incarceration proved just that.
However, we also saw how badly meaning the opponents of rules-based-engagement could be and how helpless our state was against the spree of seemingly organised looting that took place as a result of Zuma’s incarceration.
After the looting spree, our judiciary showed that its mandate is the narrow path of the law and not managing how its judgments affect politics or national security. From the rescission application considered by the Constitutional Court, to processes of granting requests for private prosecutions or recusal of prosecutors or judges to the issue of the illegal medical parole of Zuma, judges have applied themselves to the merits of the cases before them and have made decisions that show no fear or favour mostly.
It is for this reason that it is time to allow Zuma and all his anti-rule-of-law supporters to fizzle out of the system as they appear to be already. Zuma has served as a battering ram against the constitutional integrity of our system of government.
There is hardly any institution Zuma has not wrestled with. He has tested every avenue in the book to the point of abuse and tiring the system down.
But our idealistic notions of what ought to be should also be accompanied by a measured sense of what the costs of ongoing battles against real politik and security are. In that sense, total cost and benefit assessments need to be done.
Whatever considerations are going to be made by the department of correctional services, jailing Zuma again should happen if only carefully thought out, if it must at all. Our security apparatus must assess the risks based on intelligence on hand and advise what is possible.
I doubt that the Zuma faction still has the political economic capital to achieve the coordinated attacks which followed the arrest of the former president. So perhaps the probability of another outbreak of unrest is medium to low. But such a possibility should be determined on an evidence basis, not probability analysis from a vacuum. Our country seems always pregnant with conflict.
Additionally, Zuma is old and has lost too many battles. A little bit of reprieve allows not just him to enjoy his retirement in relative peace, if that’s what he wants anyway given his ongoing activism and recent self-demotion to join the SA National Civics Organisation leadership structures at provincial level, but it also gives the country more space to think in an environment in which Zuma is not a dominant factor of our politics. He has been a divisive figure for over 20 years in essence. When do we count our losses or “take profit” and move on?
• Mtimka is a lecturer and political analyst at Nelson Mandela University and the executive chairman of the SA Political Risk Institute. He writes in his personal capacity.
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