Alagi Yorro Jallow
Fatoumatta: Some decisions in life deserve more wisdom than straight academic knowledge. Nevertheless, as we know, we cannot come under any circumstance to argue that even the President is above the law; even the President could not be investigated. You cannot arrest former President Jacob Zuma and expect peace in the street. The rule of law, the Constitution, the decision to do what is right and what is right as a country for a former President to face justice go beyond simple academic activism. Such a case is the type that should not drag in court and die a natural death. A former President cannot possibly stay in jail for long without being pardoned.
“There is an old saying: There is no honorable end to a political career. It is either death or disgrace”, according to former Premier of Western Cape Ms. Helen Zille. However, before my words get twisted and misinterpreted, let me state the obvious: contempt of the Constitutional Court, especially by a former President, deserves a jail sentence. Hundreds of thousands of words have been written on this theme since last week, and I do not intend to add them.
Fatoumatta: The protests in South Africa are a practical demonstration of the pursuit of justice in conflict and post-conflict situations – where political instability complicates the questions of how political crimes can be prosecuted and punished. In cases where the prosecution of the criminals has the potential of destabilizing the transition from conflict to peace, where such punishment can instigate a coup d’état, renew hostilities, damage the economy and infrastructure, or fuel the killing of political opponents and civilians, peace negotiators often put restorative justice on the table.
Fatoumatta: I know a few of you may disagree, but this is the problem with Africa; we must set a good precedent and stop such highfalutin nonsense, but trust me, even some advanced democracies and civilized countries which we think are a model of good governance and such, many leaders get jailed and later pardoned.
However, South Africa had long emerged from that phase, but, like most African countries, been dilly-dallying with the idea of granting amnesty for former Presidents and Heads of States for corruption cases which are based on the implicit and tacit assumption that corrupt people in Africa have the capability of plunging the country into violent conflict were they to be prosecuted. Amnesty, in this case, would send the message that corrupt patronage networks have captured all constitutionally mandated bodies charged with the responsibility of investigating, prosecuting, and punishing economic crimes.
Fatoumatta: This is what the protests are challenging. They are testing if the state’s institutions, such as the judiciary, can apply the law fairly and without fear of retaliation and whether the executive has the capacity, ability, and willingness to uphold the rule of law. The state has been put in an uncomfortable position. Nevertheless, first, it demonstrated that former President Jacob Zuma had not been captured – the freedom fighter, the President, and the prisoner. Hence the overreaction, the deployment of the army on the streets. Second, while the courts will be beating their chests for the win, the political system must find a way of messaging that does not characterize Jacob Zuma as a political prisoner. Again, a delicate balance in a post-apartheid state. Most African countries are mere ethnocracies with a thin respectable democracy trench coat. Expect political violence and the state’s response to follow that pattern, which will fracture an already weakening state.
Helen Zille said, “President Zuma is a traditionalist, totally unfamiliar with the concepts of constitutionalism, thrust into the role of President – whose primary duty is to serve and defend the Constitution. A total misalignment. The idea that people are born with inalienable rights that no one can take away from them and that elected leaders are there to protect and defend these rights is indeed a “Western thing.” In traditional societies, the notion that the Chief grants you favors if you seek his favor is far more prevalent — and it is easy to see how this quickly morphs into “corruption.” The leader looks after his own, making the idea of “nepotism” a very “Western thing” as well.” Helen Zille further added that “Jacob Zuma did not understand all this and said so openly in the media. This genuinely puzzled him, and he was not afraid to say so. It should have been predictable that he would end up in jail for contempt of court, even before his multiple acts of corruption caught up with him. Perhaps more than at any other time, South Africans saw the misalignment between the inherent assumptions of constitutional democracy and traditional African cultures, which are more aligned to feudalism than the accountability that citizens demand from our leaders”.
The story of former President Jacob Zuma is one of the personal tragedies that arise from an attempt to take a shortcut through history, which South Africans are trying to do. The Jailing of a former President in South African courts last week was a victory for constitutionalism and the rule of law — and in that sense, a huge step forward for South Africa. First, however, the enormity of these developments needs to be recognized for what they are in the South African context. First, however, back to the person who is former President Jacob Zuma. Helen Zille opined that “He achieved the pinnacle of power in a Constitutional Democracy. However, unfortunately, he used it like a Tribal Paramount Chief — ending up in jail as a consequence”.
Fatoumatta: I have seen people arguing that President Jacob Zuma should not have been jailed because it would cause riots. This is the kind of primitive thinking that ensures Africa remains behind. They say Jacob Zuma is such a hero, and he is so popular. Yet, he is such old and other tales. Should the law be suspended because a famous person has chosen to break it? What will prevent impunity if a sitting president is assured of life immunity from prosecution? Immunity breeds impunity. If it is found that President Zuma has in any way incited the rioting, more charges should be pressed against him. The rioters should also be held to account under the law.
Africa will get nowhere unless we cease having two sets of laws. One for the poor and one for the rich. One for the lowly and one for the mighty.
The fight against impunity will be at a high cost, including the kind we are seeing in South Africa today. However, we must be ready to pay whatever cost to ensure everyone is accountable under the law regardless of their status. The long-term benefits far outweigh the temporary costs.
Fatoumatta: Former Presidents can be criminally prosecuted for offenses that they can be impeached for. No sitting president has been indicted for criminal conduct. Sitting presidents cannot be charged. This is not because they are angels, far from it. One could contend that a president should be immune from all state criminal investigations as long as he remains in office. This is not because criminal; indictment is not legally allowed. Instead, it is people who do not like the idea of criminalizing politics. Both parties and the public see the prospects of immunity as a guarantee that a country’s politics will remain civil and that power will be transition peacefully from one party to another. That is one of the other reasons what drove President Yahya Jammeh to refuse to relinquish power when a senior member of the 2016 coalition, Ms. Fatoumatta Jallow Tambajang, told the global media that President Jammeh would be prosecuted before his mandate ends. Those who steal your money, your land, they steal your future, thinking that they are untouchables, should be sure of going to jail in the future. Of course, they can continue defying court orders and making denigrating statements targeting Judicial Officers. Still, they should be sure that the wheels of justice will one day catch up with them.
Fatoumatta: The sentencing of Ex-President Jacob Zuma to 15 months of imprisonment for contempt of court by the highest court in South Africa reinforces the age-long dictum that the law is no respecter of anybody, no matter how highly placed he is. Respect for the rule of law and law enforcement constitutes the bedrock upon which constitutional democracy is anchored. President Jacob Zuma, a decorated former freedom fighter and champion for change, ends up in jail at the sunset of his life. However, power is genuinely temporary. The criminal justice system is not a respecter of one’s official capacity, past credentials, or exploits.
Alagi Yorro Jallow