Last week we were provided with the most powerful symbol we have had since 1994 that no one is above the law. It showed that the institutions of state are working again. It showed that politics is subservient to the state. That no individual, no matter how powerful, is above the laws we have created to serve our democracy.
In a sense there was nothing complex here: a court order had been made that former president Jacob Zuma should serve 15 months in prison for contempt of court. The president did not hand himself over as the order stipulated and therefore the order said that the police must arrest him. That was really all there was to it.
But the decade of state capture had scrambled the simplicity of the rule of law. The criminal justice system had been systematically targeted during the period, undermining institutions from our intelligence services to the SA Revenue Services. It saw many aspersions cast on our institutions, often by the former president himself.
Institutions are critical for economic development because they instil confidence that everyone can rely on our legal processes. This is particularly important in the business sector where investment is often long term. Companies take risks when they invest large amounts of capital in long-term projects. If there is any doubt about the stability of the institutional framework, and therefore whether they will be able to generate the returns that they need to make on the investment, the investment won’t happen.
So, while last week’s action was critical to every South African’s confidence that they live in a country where no one can undermine the institutions that are key to improving the lives of all, it also has business consequences. It rallies confidence among businesses and investors, both here and abroad, that South Africa is a trustworthy place to do business. It earns respect for our institutional strength and sends the right sentiment.
The former president tested our institutions to the fullest. He refused to appear before the Zondo commission, despite a Constitutional Court order to do so. As he ran out of legal options, he resorted to inflammatory rhetoric to try and turn people against the justice system.
We have seen how such actions in other countries can lead to constitutional crises. But, in the end, last week showed that our constitution is far stronger than some seemed to believe. The justice system, from its apex court to those in the police force tasked with enforcing judgments, worked exactly as they should. A person disobeyed court orders, receive a prison sentence for doing so and is now serving his time.
The distance we have travelled since 2016 and 2017, when state capture was at its worst, must be appreciated. Our state-owned institutions were then festering with corruption, our tax authority was unable to pursue those receiving the loot, our commercial crimes prosecutions had effectively ground to a halt.
Corruption charges against Zuma remained on the books throughout that period but, with the National Prosecuting Authority politicised and undermined, there was little hope that he would actually see his day in court. In 2017, BLSA joined Cosatu in demanding that the Public Protector’s recommendation of a judicial investigation into state capture be implemented. That led to the Zondo commission that is continuing the painstaking work of drawing out the full extent of state capture and the undermining of institutions. The commission will report on the wide and deep extent of corruption and much investigation and prosecutorial work must follow. But it is remarkable that today the Gupta family are international fugitives and the man who was key to their project is behind bars.
While last week was a victory for the rule of law, it was particularly a victory for constitutionalism. South Africa is still a young country and we are still solidifying the foundations of our nation. The constitution is the most important foundation there is, and last week was a significant demonstration that it holds very firm. The constitution sets down the basic rights all of us enjoy and the democratic framework for us to determine the kind of society we want to live in. It has made precedent-setting decisions that have compelled the state to act in the interests of ordinary people, from access to healthcare to rights over land. It empowers all of us. When it is undermined, all of us are worse off.
Last week I was filled with hope that we truly have put state capture behind us. I felt something of the optimism of the early days of our constitutional order, when we had adopted one of the most progressive constitutions on earth that promised to fundamentally transform our country from the repressive Apartheid regime. We have had a decade of “lost years” but the framework has survived. It is time for us to get back to the work of developing our country and providing all who live in it with the opportunity to enjoy their rights in a society governed by the rule of law.
This column is by Busi Mavuso and was first published in fin24.
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