If Jacob Zuma’s arrest and incarceration were intended to signal that all are equal before the law, it’s hard to tell right now whether we’re better or worse off on that score.
Equality before the law is the bedrock: a principle in our law without which no higher refinements and aspirations of our constitution might be achieved. It also represents, particularly taking into account where this country comes from, the very highest expression and achievement of our constitution.
Of course, equality before the law does not mean treating people equally when their unalike circumstances require different accommodation — as with laws that might affect those with physical disability. But where those differences require the same treatment (so for instance, rich and poor alike must observe the criminal law), exemption or immunity for some is the defeat of equality under law.
It is not an exaggeration to say Zuma’s repeated insistence on exemption for himself from the reach of this country’s laws has posed the most grave threat to the principle of equality under the law in our post-constitutional era.
His snub of the Zondo commission was flagrant. His wilful failure to comply was notwithstanding the commission’s terms of reference, which, as the Constitutional Court explained, “place the former president at the centre of the investigation. They seek to establish whether he abdicated his constitutional power to appoint cabinet members to a private family and whether he had acted unlawfully. These are all matters of public concern ... and some of them fall particularly within the personal knowledge of the ex-president.”
Yet that ex-president thought the lawful authority of the commission did not apply to him and that he owed the public no explanation. He then chose to defy the court’s order requiring that he submit to the commission’s authority. When a further approach was made to the court by the commission, this time for a finding of contempt and a custodial sentence, he again believed himself exempt from the legal process, instead choosing to repeatedly attack the legitimacy and integrity of the judges.
The court readily grasped the enormity of the threat it faced. Justice Sisi Khampepe wrote: “If we do not intervene immediately to send a clear message to the public that this conduct stands to be rebuked in the strongest terms, there is a real and imminent risk that a mockery will be made of this court and the judicial process in the eyes of the public. The vigour with which Mr Zuma is peddling his disdain for this court and the judicial process carries the further risk that he will inspire or incite others to similarly defy this court, the judicial process and the rule of law.”
So, when the court ruled that he was in contempt and imposed a sentence of imprisonment, and when Zuma’s arrest and incarceration were finally secured, it seemed we might dare hope that despite tremendous cost, equality under the law had been definitively underlined. Even the politically powerful were required to bow to our constitutional legal order.
Yet now, having served barely two months of his sentence, Zuma has been granted medical parole. Given the paucity of information disclosed by correctional services relating to this decision, it is hard not to feel suspicious that special exemption is again being made.
But as disturbing as this development is, it is no less disturbing than that more than six weeks after unprecedented lawlessness and criminality broke out in KwaZulu-Natal and Gauteng following Zuma’s arrest, no high-profile arrests have yet taken place.
Only days before being taken into custody, a maskless Zuma sat alongside his senior legal counsel as he addressed the assembled media and throng of supporters, an impending third wave of Covid building. They said they could not be held responsible for what would follow should Zuma be imprisoned.
It seems now that no-one will be held responsible — certainly no-one of any real seniority or political power. And we are left to ask: did the court’s finding of contempt and order of imprisonment uphold equality before the law or lay bare its abject defeat?
• Fritz, a public interest lawyer, is CEO of Freedom Under Law.
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