A Rubicon moment

At midnight on Wednesday our country crossed a rule of law Rubicon to be celebrated by all decent people. Former president Jacob Zuma is in prison. That he is incarcerated in should not be celebrated. A first contempt conviction does not, in my view, justify imprisonment. What we should celebrate is much bigger than a former president; it is the rule of law.

Whether he is imprisoned for one, a few or many nights is relatively inconsequential. He might have been released by the time you read this. He might be released by the Constitutional Court after its hearing on Monday. He might have his imprisonment commuted or serve all 15 months. The judges might have erred, or err henceforth. These matter for him, his followers and adversaries, but not for the rule of law.

During the media feeding frenzy surrounding hearings, gatherings and rhetoric, few paused to contemplate the bigger picture. What happened supersedes profound implications for Zuma, the ANC and politics generally in our much beloved country.

A former and popular head of state, with many luminaries backing him, was tried and found guilty of contempt of court by the “highest court in the land”. He was afforded due process, and lost.

Much that has been argued on both sides is questionable. On the pro-Zuma side it is hard to believe justice has been done when someone is jailed the night before judgment on an interdict application, or four nights before a Constitutional Court hearing.

On the anti-Zuma side, it is hard to believe justice was not done in his conviction for contempt of court after full and transparent due process.

Making sense of this historic moment is confounded by the binary imperative according to which people spontaneously split themselves into two dogmatic camps. There they wallow in confirmation-bias echo chambers in which whatever confirms preconceptions is recycled monotonously. The binary imperative (a term I have coined) makes it difficult if not impossible to avoid tunnel vision and muddled thinking.

To the credit of our prosecuting authorities, our courts, our government and our nation, the rule of law has been upheld. We have seen eloquent and informed lawyers presenting compelling arguments to impartial judges. We have seen rulings with which, like me, we might disagree while delighting in their jurisprudential meaning.

What lies ahead? No-one knows, but what we do know is that the rule of law has been given a huge shot in the arm. Much will hinge on whether Zuma serves a sentence determined by further due process. There will be much fussing about how long he will be imprisoned, whether his sentence will be commuted or rescinded, whether he appears before the Zondo commission, and so on.

Compared with what has already happened, these are trivialities. Were I deputy chief justice Raymond Zondo, for instance, I would recuse myself for Zuma’s appearance. For justice to be done it must be seen to be done, to which end I would err on the justice side. But that is my opinion. Zondo’s judicial competence and independence must be respected and upheld.

The anti-Zuma echo subchamber on the “right” sees no good in the country. In the face of all that is positive, they spew relentless negativity. At first we were assured Zuma would never be prosecuted, then that he would never be convicted, then that he would never be jailed, and now that he will never serve his sentence, and that he will never be tried for corruption.

Their anti-Zuma bedfellows on the “left” see only virtue; their faction of the ANC being flawless. For “radical left” pro-Zuma echo chambers the ANC is a “neoliberal” sell-out. The “neo” prefix is pretentious twaddle. Their drumbeat is that since Zuma has not been convicted he is the victim of apartheid-like “detention without trial”. They are right and wrong. He has not been convicted of “state capture” corruption, but has been convicted of contempt.

In the real world we are on neither the high road nor the low road, but the messy path with much to celebrate and much to mourn. When the government gets it right, as in the Zuma saga, it deserves accolades. Likewise much else that it gets right — not least the most recent state of the nation address, the budget, and the first steps towards privatising power and state-owned enterprises.

When it gets things wrong, as with national health, expropriation, lockdown and race policies, it deserves encouragement to get it right. What it deserves today is clear, celebratory fireworks, trumpets and drums as we celebrate due process, justice and the rule of law.

• Louw is founder and president of the Free Market Foundation.