'Constitutional vandalism' is in the eye of the beholder

The Democratic Alliance’s Tony Leon has accused President Mbeki, ANC president Jacob Zuma and Cape Judge President John Hlophe of “constitutional vandalism”. Leon’s allegations arise from a variety of causes, particular to each, as set out in an article from Sapa, which appeared on IOL.

The courageous and adroit former leader of the DA is undoubtedly sincere in venting the frustrations felt by many South Africans as a result of the political, economic and social problems currently being experienced. Notwithstanding, I would like to make a few observations regarding certain of the accusations:

With regard to Zuma, he says: “The president-in-waiting, Jacob Zuma, has already been processed through the criminal courts. As an indicted accused on four serious charges of corruption, racketeering and tax evasion, we face the spectacle of the next occupant of Tuynhuys and the Union Buildings being in the criminal dock in the morning and being president of the country in the afternoon.

“Quite what signals this will transmit in terms of the rule of law and public accountability remains both bewilderingly unclear and overwhelmingly negative.”

While I understand Leon’s concerns, my first question is whether the vast majority of our electorate see things in the same way. In terms of the rule of law and public accountability, the questions I’m continually being asked are the following: Why was only Zuma charged? What about the rest? Was this not a political move designed to destroy Zuma or, at the very least, keep his focus away from the political arena?

The perception of justice, in this instance, is that Zuma should never have been charged alone or at all. That prosecuting him was pursuant to a political agenda aimed at persecuting him while the rest of the suspected perpetrators remain untouched. I submit that perception in this case is far more important than reality because it constitutes the “reality” of a substantial block, if not the majority, of our citizens.

When we therefore speak of sending out signals in terms of law and order, accountability and justice, we must first consider which audience we are referring to. In the case of Zuma, I submit that the majority believe that injustice rather than law and order is being served by continuing the matter and not dropping the charges.

This does not excuse Justice Hlophe’s conduct, if he was involved in trying to exercise influence on the court. Hlophe as a highly senior judge, is required to know better, and if the hat fits he has to wear it and leave. The whole problem arose from political intervention in state or judicial functions, and if he has brought us more of the same, his conduct cannot be condoned.

In Zuma’s case, let’s not jump to the conclusion that the citizens of this country would be outraged if the charges were dropped. In this case one man’s perception of what constitutes law and order is another man’s perception of injustice driven by political motives. If that be so then the reality has to marry itself to the perception out there, and solutions found which are manageable.

It’s one thing to speak about ideals like “an open policy on immigration” but quite another to clean up the mess it creates. While addressing concepts like “accountability”, “law and order” and the like, don’t forget that you have to take your community along with you or you’ll be creating more problems than you’re solving.

When I called for amnesty for Jacob Zuma months ago, I told readers that when the country is on a knife’s edge, I’d like to see how many of you will still be concerned with issues like accountability, sending wrong signals and law and order. Well, I’ve now seen how well the country coped with the xenophobia issue. In one survey I read that 25% of South Africans were thinking of leaving.

Makes you think what this country will look like during a Zuma trial.

In a young democracy such as ours we have to give serious consideration to what the majority of our citizens believe to be right rather than using principles set in stone. This entails flexibility and adapting to our circumstances, rather than models which might be good in theory but disaster in practice. I’d also like those who are thinking of leaving to bear in mind that giving solutions, the consequences of which you don’t plan to endure, may well sound promising from a distance but be hard to bear as a resident.

The solution has to factor in the perception described above, the impact on our criminal justice system, political and socio-economic factors both here and abroad, as well as the signal this solution will send.

It’s never simply black or white.