South Africa’s Constitutional Court decision to sentence former president Jacob Zuma to 15 months in prison for contempt of court is momentous. Amid the incompetence, chaos and corruption that dominates media headlines, the move is a sorely needed light in the darkness; a courageous bulwark against a former president’s Stalingrad (ongoing) defiance of the law. More structurally, it indicates that South Africa’s depleted institutional strength is slowly recovering. Of course, the sentence is not a fait accompli and ongoing legal shenanigans continue. Zuma has attempted a High Court interdict against his arrest. Judgement will be passed on Friday, 10 July. Advocate Tembeka Ngcukaitobi, acting for the Zondo Commission against Zuma famously remarked to Judge Bhekisisa: “We are dealing with a repetitive, recalcitrant lawbreaker in the form of Mr Zuma. He has now come to ask you to assist him in breaking the law further. You should reject that.”
In a constitutional democracy, we expect the rule of law to be upheld as a crucial foundation that protects us against fragility. One element of upholding the rule of law is that no one is above the law nor seen to be above the law, especially not members of the ruling elite. We cannot have one law for the governed and another for the governors. The constitution governs the land in a way that is meant to be impervious to political manipulation. Our Constitutional Court, the highest in the land, has often ruled without fear or favour against the executive.
The timing and substance of the judgement could not have been more important in light of South Africa’s development trajectory.
In early May, Good Governance Africa (GGA) published an article indicating that South Africa was at a critical juncture. Chief Justice Mogoeng Mogoeng had taken long leave, raising suspicion about the timing of it in the thick of sustained political attacks against the judiciary. Zuma had defied the Zondo Commission and refused to appear before it when summoned to give evidence. It was Zuma who established the organ in the first place, although only under considerable pressure following revelations of the extent of corruption under his tenure.
The African National Congress had also just suspended another alleged looter-in-chief, Ace Magashule, a senior member of the organisation. Magashule responded by defying the order and bizarrely claiming that he had actually suspended the president. That battle between Magashule and President Cyril Ramaphosa mirrored the parallel attack on the judiciary. It was a precarious time, lest we forget.
Since then, Magashule’s suspension has appeared to uphold the party’s ruling that anyone facing corruption charges should step aside. And Mogoeng’s replacement, Acting Chief Justice Sisi Khampepe, has proved her mettle in a short space of time. It was she who delivered the judgement passing sentence against Zuma. In May, GGA wrote: “She brings fearless independence and forty years’ worth of experience to the role. … It is critical that civil society band together to prevent a constitutional crisis and uphold the rule of law, preferably with high-profile elite lawbreakers in prison soon.”
Laced with optimism bias as it may be, it appears that the preference will be realised.
The late Nobel Laureate, Douglass North, along with John Wallis and Barry Weingast, provided a useful framework in 2009 to categorise countries’ development progress. On one side are those in complete chaos. In the middle are most of the world’s developing countries, which North defined as Limited Access Orders (LAOs) – citizens literally have limited access to economic and political opportunities. On the other side are a handful of developed nations that he terms Open Access Orders (OAOs). These are mostly consolidated democracies, though the authors forego that terminology.
LAOs – mostly developing countries – are regarded by North and his co-authors as falling along a continuum from fragile to basic to mature. Depending on how one defines the relevant metrics for delineating the categories, South Africa falls somewhere between a basic and a mature LAO. Mature LAOs are relatively programmatic, and their political systems are relatively open, competitive and inclusive. To transition from a mature LAO to an OAO, several doorstep conditions are normally realised, beginning with “rule of law for elites”.
The point is that institutional mechanisms need to be built to establish these conditions, normally beginning with the first, from which the others follow. Institutions are best defined as the social systems – norms, values, beliefs and cultures – that motivate regular human behaviour.
OAOs are characterised by impersonalised forms of exchange whose rules are stable and governed by the law. LAOs, by contrast, are characterised by the opposite – namely, unstable rules and the absence of the rule of law. Personalised deal-making, in which members of the ruling elite operate above the law and enrich one another, subverts the very institutions that were designed to uphold the rule of law and generate broad-based wealth. State capture, under which members of South Africa’s ruling elite have literally used their access to power to generate rents through economic arrangements that undermine the rule of law, is the epitome of the unstable arrangements that characterise LAOs.
If ruling elites are never held to account and do not suffer the consequences of their actions, investors generally have little faith that their investments will be honoured. This can precipitate a downward spiral that scuppers development.
When the Constitutional Court sentences the chief architect of state capture to prison for contempt of court – the very court established to interrogate the anatomy of that capture – it signifies that there is indeed rule of law for members of the country’s elite. It shows that the powerful are not above the law.
All is not well but there is hope
Two months ago, none of this was a given. Few would have predicted that the Constitutional Court would sentence a former president to prison. The judiciary has shown, once again, despite sustained political attacks, that it is deeply committed to constraining executive abuse of power. It is also a move in the direction of stabilising South Africa as at least a mature LAO.
The move toward this more stable equilibrium needs to be strengthened further still. Institutions like the National Prosecuting Authority, hollowed out under the “Zupta” regime, must rapidly be replenished. Corrupt deals must be eliminated at every level, especially at the overlooked local municipal level. Lastly, the process and substance of our economic policies need to be more stable, consistent, and rational.
When political institutions that prevent corruption are combined with economic institutions that generate broad-based development (instead of monopoly rents for the few), South Africa will be much more firmly on the road to becoming an OAO.
We note that the Constitutional Court’s historic judgement opens with the famous words of Nelson Mandela – “We expect you to stand on guard not only against direct assault on the principles of the Constitution, but against insidious corrosion.” The Court has indeed done that and should be loudly applauded.
This article first appeared on Business Day here
Dr Ross Harvey is a natural resource economist and policy analyst, and he has been dealing with governance issues in various forms across this sector since 2007. He has a PhD in economics from the University of Cape Town, and his thesis research focused on the political economy of oil and institutional development in Angola and Nigeria. While completing his PhD, Ross worked as a senior researcher on extractive industries and wildlife governance at the South African Institute of International Affairs (SAIIA), and in May 2019 became an independent conservation consultant. Ross’s task at GGA is to establish a non-renewable natural resources project (extractive industries) to ensure that the industry becomes genuinely sustainable and contributes to Africa achieving the Sustainable Development Goals (SDGs). Ross was appointed Director of Research and Programmes at GGA in May 2020.