Cold facts and warm bodies: Jacob Zuma's quest for justice without law

13 April 2016

South African President Jacob Zuma’s remarks about the law last week to the National House of Traditional Leaders in Pretoria were cryptic. But the timing was telling.

‘I think we can resolve these matters in an African way, not through the law. You can’t stand in court and defend yourselves. You need a lawyer. The law goes to the other side. The judges convict you, even if you tell the truth,’ the Sunday Times reported him as saying.

‘They deal with cold facts and I was complaining about that (but) they are dealing with warm bodies, that is the contradiction,’ IOL quotes Zuma. ‘The law looks at one side only; they do not look at any other thing.’

Zuma was evidently, in the first place, urging traditional leaders not to resort to court to seek redress for a litany of complaints they had expressed – including not having pay and other resources to fulfil their mandates.

But journalists present thought he was also referring to the wider context of his own recent brushes with the law. It was less than a week after the Constitutional Court had rebuked him for violating the Constitution by ignoring the directives of Public Protector Adv Thuli Madonsela to pay back the Treasury for part of the non-security upgrades to his private residence Nkandla.

One of the ‘warm bodies’ Zuma clearly seemed to be referring to was his own, pierced and still smarting from Judge President Mogoeng Mogoeng’s rather lurid ‘sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.’ He was also presumably still feeling the pain of the Supreme Court of Appeal’s prior ruling that the South African government had broken the law by allowing Sudanese President Omar al-Bashir to visit and leave the country last year.

Zuma has suffered several other judicial blows recently, or might still do so, not least of all the biggest Sword of Damocles which still dangles over his head – the charge of corruption for allegedly receiving bribes from the French arms company Thales/Thint to help cover up its other bribes.

Against this background, Zuma’s proposal of an ‘African way’ rather than a legal way to deal with issues has naturally provoked considerable commentary and criticism, mostly suggesting that his proposal is self-serving.

‘The president’s invocation of the African way is disingenuous and possibly ambiguous,’ constitutional analyst Paul Hoffman, director of the NGO Accountability Now wrote in Business Day.

It is of course possible that Zuma was just thinking aloud as he is wont to do, seemingly forgetting that when heads of state do that publicly, their reveries tend to be read as policy. He seemed to realise this a bit late when he also told the traditional leaders last week; ‘I must not talk too much because I might get blamed for something I do not know.’ But he added ‘I only speak the truth.’ Indeed?

Or could it have been, after all, that Zuma was referring to the Traditional Courts Bill? His reference to the supposedly baleful role of lawyers in the conventional courts suggests this is what he had in mind as the proposed traditional courts very explicitly forbid legal representation.

This highly controversial piece of legislation was introduced in 2008 during the Thabo Mbeki era. But it is still in legislative limbo because of such fierce opposition to it, extending even to parts of the ruling African National Congress (ANC).

The bill would give traditional leaders the authority to preside, as de facto magistrates or judges, over traditional courts that adjudicate both civil and criminal disputes falling within the bounds of customary law and custom. Lawyers would be barred from the court.

This provoked resistance from a broad ad hoc coalition of civil society interest groups including feminists, lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights advocates, constitutionalists and simply democrats.

In 2014, for instance, Sithuthukile Mkhize of the Women’s Legal Centre, part of the broader Alliance for Rural Democracy, which had been established in 2012 to oppose the bill, said it ‘undermines the rights and values enshrined in our Constitution.’ It arbitrarily gave traditional leaders sole powers to administer customary law; created a ‘second-class justice system’ for 18 million rural South Africans by prohibiting them from opting out of the jurisdiction of traditional courts in favour of conventional courts; re-imposed apartheid’s tribal identities and authority structures and excluded women from contributing equally to the development of customary law.

Graeme Reid of Human Rights Watch added that the bill would deprive rural LGBTI people of their hard-won equal rights under the Constitution by giving traditional leaders – openly opposed to those rights – the sole authority to interpret and implement customary law.

In February 2014, after the tide of resistance to the bill had risen too high, including public criticism from women cabinet ministers, it was defeated in the National Council of Provinces, with five of nine provinces rejecting it outright. The government subsequently allowed it to lapse.

The bill’s many opponents hailed its death as a victory for their various causes. But the ANC is now trying to resurrect it. Last week the Department of Justice and Constitutional Development told Parliament’s Justice and Correctional Services committee that it had re-drafted the bill after ‘extensive’ consultation and would present it to Parliament soon.

Werner Horn, Democratic Alliance MP and Shadow Deputy Minister of Justice and Correctional Services, who was in the discussion, told the Institute for Security Studies that the government had not shown the committee the new version of the bill. But the discussion indicated that the government had not yet managed to reconcile the bill – which was based on customary law with its focus on community and family and the subservience of women – with the Constitution and the Bill of Rights, which enshrined the equality of individuals.

Horn said that he believed both Justice Minister Michael Masutha and his deputy John Jefferies, opposed the Traditional Courts Bill but that it was being driven by the chairperson of the committee, former ANC chief whip Mathole Motshekga, possibly at Zuma’s behest. The ANC hoped to get the bill passed and gazetted before the local government elections on 3 August to win the support of traditional leaders and voters, Horn surmised.

As his urban support erodes in the wake of all the current scandals, one can certainly see how Zuma would be growing ever more dependent on his rural support base. But the Traditional Courts Bill seems unlikely to come to his rescue, because of its fundamental contradictions with the Constitution. It would take ‘the wisdom of Solomon’ to reconcile the two, says Horn.

In the end, despite Zuma’s reveries, it seems the law will prevail. And, sadly for him, it will be the one that applies cold facts to warm bodies.

Peter Fabricius is an ISS Consultant.

This article first appeared in ISS Weekly, the online newsletter of the Institute for Security Studies.