We are under a deluge of ANC constitutionalism.

The ANC's faith in the judicial system has been given a "boost" by the dismissal  on a technicality by Judge Chris Nicholson of the corruption case against Jacob Zuma, president of the ANC and future president of South Africa, according to a statement by the happy accused himself. It was a ruling, he said, made "without fear, favour or prejudice". (See here.).

The ANC national spokesperson, Jesse Duarte, stated that the judge's decision was a "victory for justice and the constitution." (See here.).

Likewise, the Congress of South African Trade Unions applauded the judge's decision as upholding the "constitutional imperatives imposed on the National Directorate of Public Prosecutions to prosecute without fear and favour independently and in consistent, honest and fair fashion." (See here.).

This is fraudulent rubbish. One need only imagine the response of president Zuma and his pogrom mob had Judge Nicholson's ruling been against him. There was blood in the streets of Durban/eThekwini on the day of Judge Nicholson's decision, as the pogrom mob surrounded the court while the entire National Executive Committee of the dominant ruling party of the country sat rank after rank inside the court, in judgement over the judge. Constitution, indeed! Without fear, ha ha.

More honest duplicity was displayed by the ANC regional secretary in eThekwini, John Mchunu, when he stated after the verdict that the ANC's violent assault on central Durban that day "went on well until the police clashed with protesters. After the march, police got angry because some people did not want to go home and it was those racist white and Indian policemen who started shooting rubber bullets at the protesters". (Times, 14 September. See here).

Ah, yes. Racist whites and Indians.... There one has a more truthful expression of South African reality: the voice of the pogrom mob, with its reminder of the racist anti-Indian pogroms in Durban/eThekwini of 1948. In those far-off days, the so-called Doctors' Pact of 1946 of ANC and Indian Congress leaders was aimed to make such frightfulness impossible.

Doctors AB Xuma, GM Naicker and Yusuf Dadoo, who made that Pact, which resulted 40 years later in the admission of Indians and whites on an equal basis into the ANC, must now be turning in their graves at the barely disguised tenor of threat in Mchunu's coarse and racist statement.

This followed Mchunu's followers having attempted a few days earlier to force a mass invasion of the Durban Magistrate's Court, carrying a banner that read: "We shall take arms if need be to support ANC president Jacob Gedleyihlekisa Zuma."

There we have the street logic of the chorus of "Kill for Zuma!" issuing from the ANC, the SACP and Cosatu over the preceding months. The few puffs of constitutionalist incense now floating up to heaven from the ANC and its supporters over Judge Nicholson's verdict need to be evaluated in terms of this debased and violent rhetoric and its accompanying actions on the streets of KwaZulu-Natal. Constitutional imperatives, where are you!

There is nothing new about this, however. Fifteen years ago, in October 1993, I published an article "The dilemma of Albie Sachs: ANC constitutionalism and the death of Thami Zulu", in a banned exile magazine, Searchlight South Africa No 11 (October 1993). This article was an inquiry into the quality of jurisprudence in the ANC, focussed on the finding of an ANC commission of inquiry into the death in Lusaka in November 1989 of a senior commander of its military wing Umkhonto weSizwe, Thami Zulu (real name, Mzwakhe Ngwenya). The commission had been headed by Sachs, a long-standing ANC member and supporter, and since 1994 an eminent judge in the Constitutional Court.

The Sachs Commission's report was made public by the ANC in 1993. It concluded that Zulu, who had been released from detention by the ANC security department in Lusaka into secure custody only days before his death, had died from a number of possible causes. One of these was forensically proven poisoning; in other words, he had been murdered. However... the Sachs Commission and the report never inquired into who could have poisoned him. This was a murder mystery with no whodunnit.

I argued that the jurisprudence of Sachs (whom I described in the article as the "liberal and juridical 'consience' of the ANC in exile") was "a crucial measure of the organisation as a whole", and that the deficiencies in the report of the Sachs commission had a "more than emblematic significance". (p.40)

In relating to Sachs, I argued, one was "relating to the ANC at its most spell-binding". The subject of the article was "the future of the legal system in South Africa, perhaps for decades to come".

Referring to the fraudulent Stalin Constitution of 1936 as a model for the SACP and the ANC, I stated that with Sachs, the "ANC publicist is internally at war with the jurist, and the publicist frequently wins out." I concluded that the "distinction between Sachs' role in protecting human rights inside the ANC and in concealing its abuses is difficult to make. His work is part of the problem, not its solution. ...Between the 'comrade' and the activist for human rights, an internal conflict sparkles like static electricity. ...The 'conscience of the ANC' is looking worn." (pp.48-50)

Naturally, none of this is - or in any way is intended as - a comment on the quality and character of Mr Justice Sach's jurisprudence since taking up his post in the Constitutional Court. That is a subject completely outside the purview of this short article. I am not aware of any reason to put this in question. I do, however, put in question the character and integrity of Sachs's jurisprudence in the matter of his participation in the ANC commission of inquiry into the death of Thami Zulu, and this, as I wrote in 1993, was of "more than emblematic significance".

Its significance was that it gave expression to the very ambiguous relation, to say the least, of the ANC towards law and constitutution. The respected journalist and former director of the Helen Suzman Foundation, Patrick Laurence, has written of Sachs's jurisprudence in the matter of the Thami Zulu affair in the same spirit. (For an article on this subject by Patrick Laurence, published in the press of the Independent Group in South Africa on 18 December 2005, see here.).

In my article in Searchlight South Africa, I commented that what was at issue in Sachs's book, Protecting Human Rights in a New South Africa (Oxford University Press, Cape Town, 1990), is a "rosy liberal prose that obscures what it should illuminate." (p.49)

I continued that this was part of a bad and compromised tradition in South African law.

"In a chapter on 'The future of South African law,' he [Sachs] writes of the 'legal freedom fighters in our past' - Gandhi, Schreiner, Krause, Seme, Mathews, Fischer, Nokwe, Berrange, Kahn, Muller, Mandela, Tambo, Slovo and Kies - people who saw their legal careers as  being 'inextricably linked up with the pursuit of justice', (p.98 [in Sachs's book])

There was a central difficulty about this kind of discourse, I argued, native to the ANC and the South African Communist Party, to which Sachs had a very close relation before and during the exile decades. Such discourse presents, I wrote, "No reference to the problematic relation of at least three of these [jurists] to the ANC's system of prison camps in exile. No reference either to the fact that a number of these jurists for decades justified the tyranny of the Soviet Union, a model for Quatro and its clones. He [Sachs] writes of the qualities of professional legal integrity, including that of 'never consciously misleading the court'. (p.99 [in Sachs's book]) But to mislead a whole population...."

The report of the Sachs Commission into the death of Thami Zulu referred extensively to the ANC's Code of Conduct, which it adopted at its national conference at Kabwe in Zambia in 1985, its last before returning legally to South Africa. The Kabwe conference was principally a cover-up and whitewash for the ANC's suppression by torture, imprisonment and public executions of the mutiny of over 90 percent of its trained troops in Angola the previous year, which was above all a pro-democracy protest.

I argued that the "problem of ANC constitutionaliism is wrapped up, a riddle inside an enigma", in the convolutions in this Code of Conduct, and in the Sachs Commission's references to it. The post of Officer of Justice in the ANC, established under the Code of Conduct, to which the ANC lawyer Zola Skweyiya (with a doctorate in law  from Stalinist East Germany) was appointed, and which was supposed to offer protection to members against abuses of authority by their own organisation, was a mere dead letter.

As my article pointed out, "Two years after the Sachs report, the Officer of Justice, Zola Skweyiya, told the [ANC-appointed] inquiry chaired by his brother Thembile Skweyiya [after the return from exile] that his efforts to visit Angola in 1986 and 1987 had been blocked 'at every turn' by the then head of the security department, [the late Mzwandile] Piliso, and that he himself had been in danger of being arrested. He had been allowed to visit Angola late in 1988, but was denied access to Quatro. Efforts to visit [the ANC prison at Mbarara in] Uganda were also blocked. ...Severe abuses [in exile] continued unchecked, well on into 1991. From the Sachs report it is clear that Zola Skweyiya did not at any stage visit the detention centres where Thami Zulu was held". (p.45)

So much for the post of Officer of Justice and the Code of Conduct.

At the critical point of attempting to identify who might have administered the poison to Thami Zulu, the investigation by Sachs and his commission, I argued, "breaks down. There could not be a greater contrast between the scrupulous manner in which medical forensic detail has been accumulated and assessed, and the absence of forensic investigation subsequent to these findings". Those who supplied the poison administered to Zulu "were almost certainly ANC members, and perhaps very senior members. This point is simply not canvassed. There is no attempt to compile a list of people who had seen Zulu in the two days before his death. ...The investigation disappears into a hole".

For a legal figure of Sachs's stature to have failed so disgracefully in such an elementary matter of law, I argued, was to "deceive his readers". (pp.46,48)

In presenting its constitutional proposals for a new South Africa after its unbanning in 1990, the ANC had, I argued, the "benefit of a whole corps of constitutionalists", of whom Sachs was among the most eminent. Alongside Sachs in that now distant dawn when 'twas bliss to be alive was the former cabinet minister, Professor Kader Asmal. Professor of Human Rights Law at the University of the Western Cape after his return from exile, and prior to that lecturer in law at Trinity College, Dublin, where he headed the Anti-Apartheid Movement in Ireland, Asmal has recently expressed his extreme disquiet at the threat to the Constitution and the legal system mounted by the Zuma-Malema-Nzimande-Vavi cabal now at the head of the ANC, the SACP and Cosatu. (See here)

Asmal is the most senior ANC figure so far to express such concern over the direction in which the party is now headed. Coarse, racist, anti-Indian sentiments such as those expressed by Mchunu in Durban/eThekwini after Judge Nicholson's judgement will not ease his pain. As with Sachs, Asmal's problem is that the ANC - of which he is a very long-standing member and supporter - has veered constantly over the past fifty years between constitutionalism and totalitarianism. While he taught law in Dublin from the Sixties through the Eighties, it operated a totalitarian, one-party state in Africa. After the unbanning of the ANC and the SACP in 1990, the Mandela magic sprinkled liberally over the organisation and its well-wishers internationally persuaded many that leopard of exile had indeed changed its spots. Asmal helped to sprinkle that magic dust.

In a paper, "Making a constitution", delivered at a conference at Rhodes University in April 1993 and reprinted in a lengthy extract in the long-forgotten South African Review of Books, Asmal's argument at that time and for more than a decade afterwards was that there were "no hidden agendas" in the ANC's claims to have undergone a complete conversion to constitutionalism. My own view at the time was that this well-intentioned declaration by Asmal was "untrustworthy" (p.48). And so it has proved.

As the compass of the ANC swings from south to north, from constitutionalism to totalitarianism, it is the totalitarian tendency that now rides high. The map of South Africa reads increasingly again as it did in the old days of the National Party, with a totalitarian-minded nationalist party in full cry, brutish, intolerant, accustomed to treating the state as its own instrument against enemies high and low.

As with the Romans, it cries out: Vae victis! Woe to the conquered! It is familiar territory.