Former president Jacob Zuma. Picture: PHIL MAGAKOE/POOL VIA REUTERS.
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The Constitutional Court’s 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 (ongoing) Stalingrad defiance of the law. More structurally, it indicates that SA’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, and judgment will be passed on Friday. Advocate Tembeka Ngcukaitobi, acting for the Zondo state capture commission against Zuma, famously remarked to Judge Bhekisisa Mnguni: “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 perceived to be above the law, especially not members of the governing 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 judgment could not have been more important in light of SA’s development trajectory. In early May, Good Governance Africa published an article indicating that SA was at a critical juncture. Chief justice Mogoeng Mogoeng had taken long leave, raising suspicion about the timing 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, though only under considerable pressure following revelations of the extent of corruption under his tenure.

The ANC 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. Lest we forget, that was a precarious time.

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 judgment passing sentence against Zuma. In May, we wrote: “She brings fearless independence and 40 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.

Development matters

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 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, SA 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, while LAOs are characterised by unstable rules and the absence of the rule of law. Personalised deal-making, in which members of the governing 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 SA’s elite have 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 governing 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 SA as at least a mature LAO.

The move towards this more stable equilibrium needs to be strengthened further still. Institutions such as the National Prosecuting Authority, hollowed out under the “Zupta” regime, must be rapidly 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), SA will be much more firmly on the road to becoming an OAO.

We note that the Constitutional Court’s historic judgment 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.

• Harvey is director of research & programmes at applied research think-tank Good Governance Africa.

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