THE CRISIS ABOUT JACOB ZUMA’S ARREST IS NOT CONSTITUTIONAL.

The arrest of former President Jacob Zuma elicits questions beyond him being a political Mze for South Africa. Towering these is the extent to which his arrest is a crisis to the country and its constitution. Regarding whether it is a constitutional crisis or not, there is a cognitive consensus that it is not. This is because a constitutional crisis ‘is a potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down’. Whilst there might be a tangential basis to argue that in ‘suspending Zuma’s right to remain silent in the Japhta judgement, which ordered him to go to the commission as well as sentencing him to a jail term without trial, the containment of these errors by the judicial institutions involved does not seem to be suggestive of a ‘suspension of the Constitution to preserve social order', and indicator of a possible constitutional crisis.

Of interest is that Jacob Zuma’s self-surrender to the police practically indicates his embrace of a consensus that there is no constitutional crisis in South Africa. The arrest underscores the centrality of the ‘rule of law’ as a core substrate of our constitutional democracy, demonstrating that it sits at the interface of the political and society’s bounds in law. The perceived wreckage of order that followed his incarceration, which looked like disagreements in the political have broken down into anarchy, violence, and potential civil strife, should not be seen as a sign of constitutional crisis. It should be seen as indicative of a prolonged deterioration of the strong state of pre-Apartheid South Africa and tolerance of a nebulous democracy that ascended to challenging to reverse proportions. The calamity and chaos that characterised our democracy in the aftermath of the arrest, inevitable as it was, cannot be core in making our constitutional order collapse.

Our adoption of a system that convenes Parliament with legislative authority appoints a State President in whom the republic’s executive authority is vested (and he exercises together with members of Cabinet) and establishes independent courts into which the judicial authority is vested and are only subject to the Constitution and law, remains the pillars strengthening our democracy. This arrangement welds the state as sovereign and the citizens into one body politic. The value system which undergirds what we have adopted elevates the judiciary to a process-driven domain of our adjudicative power. This is despite the truism that individuals therein may have been socialised in a rule-by-law legal system that could make them lag in their rediscovery of the new values. Only a ‘doctrine of the mean’, emphasising moderation and harmony when passing judgements, can protect us from their potential vices.

Therefore, the crisis in Zuma’s arrest is not Constitutional but an in-constitution crisis precipitated by executive authority-based policy disasters. The non-binary way the national executive deals with executive and judicial authority displays a leadership schooled in the classics of post-liberation government, which imprinted a deep sense of ‘rule by law’ and responsibility to engage in the transformation of an otherwise operational system and decorum which valorises society’s natural hierarchy of obligations to a set jurisprudence and deference to whatever it considers authoritative. This crisis manifests in the extent to which political incumbents can access from within the hierarchy those who ideate interpretations of the law, out of which society should be subjected to its rule and not by it. The sincerity with which errors in law are made by those who took an oath to defend the laws positions them as reciprocating how the law treats them with deceit instead of the deceitfulness they sometimes treat the law with.

The often-inflexible hold of originated values that socialised leaders, out of whom virtues requisite to manage a constitutional democracy are expected, tend to make their contradictions with it universal and absolute. This has made those in the executive arm of the State project an attitude of merely trying to co-exist with the rule of law rather than embracing it as a substrate of our democratic order. The underlying rule of law semi-literacy of the executive and their legal advisers is a liability for ‘the required and the new rule of law socialisation to supersede the old rule by law’. In understanding the socialisation of those in leadership with the executive authority of the State and the meaning of its official seals when communicating to them as individuals, we must understand the uncompromising importance of ‘how the Constitution retains its binding authority over time’. This would require an exploration of how the Constitution is implemented.

Public Administration theory teaches that the judiciary’s role in implementing our constitutional democracy might be overrated if not exaggerated. Courts adjudicate what could not be resolved in the implementation of the Constitution; they do not implement the Constitution, which is safe for being guardians of it being the supreme law of the republic. The life of a Constitution is in Parliament when laws are made according to its principles, in the executive when arrangements and organisation for institutions and organs of state charged with the attainment of its objects occur. It is in the routine addressing of constitutional issues that crises of implementation originate for us to determine if such is a constitutional crisis. Strictly speaking, the Zuma arrest, judged outside the political innuendos it carries, is a classic sequence of processes available to a State to manage politically explosive situations such as the one our country has experienced.

In process terms, an institution charged with the responsibility to support constitutional democracy, the office of the Public Protector received a complaint to investigate alleged misdemeanours in the executive; it investigated and produced a report that recommended as a remedial action the establishment of a Commission of Inquiry to investigate the state of capture in South Africa; the President, interestingly Jacob Zuma, appointed the Commission to be Chaired by Deputy Justice Zondo. The Commission was appointed under a law governing commissions, whose implementation carries the President's executive authority. Thus, all accountabilities were related to the authority he bestowed on it. The judicial character of The Commission is more about the conduct of the investigations, but its outcomes are of an executive authority nature. With its defined powers, the Commission has the power to issue subpoenas that carry the same force as that of a court of law, and thus obligatory for all citizens to oblige to its subpoenas, lest they are in contempt.

The Commission issued a subpoena to President Zuma, who attended, and whilst in the process, he raised objections of bias from the chairperson and requested that he recuse himself. The chairperson challenged the recusal and ‘adjudicated his hearing’. He then exonerated himself from prejudice and ordered that Zuma should reappear. President Zuma did not comply, thus generating contempt for the Commission. The Commission sought the intervention of the courts and approached the constitutional court. In the intervening period, President Zuma applied for his matter to be heard by the high court and still awaits access. The Constitutional Court allowed access to the case and summoned Zuma to appear before it; he did not attend, and a contempt of court was laid against him by the Constitutional Court. The Constitutional Court summoned him for contempt, and he did not participate; the court heard the case and passed judgment commensurate with the prayers it received from the complainant. He was found guilty and sentenced to a 15-month jail term. He applied for rescission of the judgement and the stay of execution of his warrant of arrest; as deadlines for his arrest expired, he ultimately surrendered himself to what the process expected of him.

The in-constitution crisis is, in this instance, occasioned by the fact that at the source of the tension between the Commission, a creature out of the executive authority which vests in the President and the former President, is the politics that has overwhelmed the operations of the Commission, given the individual consequences that would go with what is revealed when the Commission is in session. The recommendations that may flow from there are that the Commission assumed a character beyond just investigating the ‘state of capture’ as envisaged by the Public Protector’s remedial action. The social and political interests that the Commission spawned and the growing importance of the political consequences of its processes and decisions turned the presiding judge into a decision-maker in the clash of political interests characterising the general milieu with which the Commission operated. In as much as the Commission’s conception of public interest is judicial, the likelihood of its processes on procedure being questionable on substance will bring into the Commission the politics that may be at play ‘in the state of capture’ and related.

Because the Commission is, strictly speaking, an organ of the state, I argue. Thus, an institution with which conflicts of interest can be registered, resolved, and maintained embodies a public power that makes it essential to politics. The capacity of the Commission to coerce individuals to submit to its authority, which is, in this instance, and I argue, a cocktail of executive authority and judicial authority, makes it matter in politics. The non-rival nature of a judicial process, save for the rivalry in arguments to extract a fair process-based judgement, is often choked by the rivalry in the politics that precede the in-judiciary processes. The submissive character of the judicial system and the legal authority ambitions of judiciary members, especially in a country still untangling itself from jurisprudence that criminalised conscientious disobedience of the law, is sufficient to generate vice from judges as individuals or a belief cohort. The texture of their judgements might reflect such biases despite them being carefully crafted and or legally argued. The interior of their social condition and opinion will, and as the minority judgement on the Jacob Zuma case exposed, create in them a society whose membership of it will be their acceptance of a rule of law creed that enables them to hold together.

The crisis in the Zuma judgements is the cocktail of executive and judicial authority that is in the Commission and the unique circumstance it creates where a tradition of the ‘rule by law’ within the judiciary is in an ‘ideational wrestling match’ with an encroaching and resolute ‘rule of law’ tradition. The limitations of the Constitution to give decisive guidance if the judiciary has erred and the apparent inequality of access to ‘in-judiciary-society’ dispute resolution mechanisms, and thus judicial power, creates in the political an inferiority complex expressible only through conscientious objections, which in this case were definable as contempt. The issue remains as to what the contempt was and not to whom or which institution got the contempt. There are few answers to these questions, and yet there are more questions to the answers given. This case might be one that will ignite the most elaborate consequential review of the judiciary.

Is there a way out of this crisis? The answer is a resounding yes if the assumption is never to believe judges are beyond reproach and cannot be guilty of vice. Further, the country might need to accelerate itself into a consciousness that the issues of making and implementing laws are as political as the power and force of judgements that come out of independent courts. The mere fact that decisions of the judiciary can effect amendments to laws based on a time and space-based value interpretation, judicial forums, left unchecked, could be enclaves of interpretation political power that can undermine the democratic will of society as incubated in Parliament as its convened representation. In how the executive implements the laws made by Parliament, the judiciary derives its purpose of existence, save for the elusive object of being justiciable in the attribute. In these domains of the political-judicial dichotomy, the politics of judicial consequence define the significance of prosecutorial power as a function resident in the executive authority domain of the civil justice and criminal justice system. This requires leadership maturity beyond the immediatism displayed in Jacob Zuma's arrest judgment.