During the Zuma yrs, South Africans grew to become common with the concept of ‘lawfare’ — employing the regulation tactically or strategically to accomplish (either nefarious or laudable) political goals. But we do not have a expression to describe the contrasting phenomenon of preventing a authorized battle, not with the aim of securing a lawful victory, but fairly to acquire political leverage in buy to persuade other folks that you are way too highly effective to be pressured to obey the law.
It is typically assumed that it is in the desire of a party in a authorized dispute to test to progress the strongest probable lawful arguments in their favour with the aim of in the end securing a authorized victory in court docket. If the legal circumstance appears hopeless, parties with deep pockets may possibly decide to progress their passions by exploiting procedural loopholes, both to obtain time or to secure a lawful victory on complex grounds. In other words, it is commonly assumed that lawful battles are ideal fought with lawful applications with the aim of securing a favourable authorized end result in the suitable discussion board.
In so-known as “lawfare” situations, outstanding attorneys, relying on the current legal concepts, will create legal arguments that they consider will persuade the courtroom. Such clients may perfectly consider to mobilise support from the general public for the justness of their lead to, but will do so by popularising their genuine or plausible lawful promises.
The illustration usually trotted out is that of the Procedure Action Marketing campaign (TAC), which released a carefully crafted legal assault on the failure of the condition to roll out a in depth programme to avert mom-to-baby HIV transmission. While lawyers sophisticated a profitable lawful argument within the courts, TAC activists mobilised the public to guidance their lead to and to encourage them that the provision of everyday living-conserving ARV treatment to all South Africans was a human correct confirmed by area 27 of the Structure.
The manner in which Jacob Zuma and his legal professionals have engaged with the legislation all through their fight with the Point out Capture Fee appears to depart significantly from the earlier mentioned techniques. Zuma and his legal professionals have not seriously attempted to craft lawful arguments aimed at convincing the presiding decide that the law is on their side. As a substitute, they seemed to have crafted arguments to drum up political support for Zuma — even when these arguments had been detrimental to their prospective buyers of success just before the commission or other courts.
Zuma and his lawful team have regularly sophisticated implausible or evidently mistaken “legal” arguments — even when greater legal arguments were offered — and followed a lawful approach that had no prospect of accomplishment — even when a various technique could properly have delayed his overall look prior to the commission until finally after its time period had finished.
One instance of the clearly mistaken lawful arguments state-of-the-art by Zuma relates to the conclusion by Deputy Chief Justice Zondo not to recuse himself immediately after getting requested to do so. Before this week it was described that all through a assembly involving Zuma and the ANC best 6 management, Zuma accused Zondo “of acting as judge, jury and executioner by hearing the software for his recusal, alternatively than requesting that a courtroom or one more decide listen to it”. A similar argument was advanced by Zuma’s attorneys throughout the recusal application. In actuality, advocate Muzi Sikhakhane claimed that they would lodge a complaint with the Judicial Assistance Commission (JSC) due to the fact Zondo acted as a choose in his own lead to.
Everyone with even a glancing know-how of South African legislation on recusal would know that this argument is lawfully untenable. Not only is it permitted for the decide remaining asked to recuse him or herself to listen to these an software and to determine on it, but it is also necessary by our legislation. In the 1999 judgment of the Constitutional Court docket in the case of President of the Republic of South Africa and Many others v South African Rugby Football Union and Other people, the Constitutional Court docket confirmed that “judges have jurisdiction to identify apps for their personal recusal”.
Write-up 13 of the binding Judicial Code of Carry out — permitted in 2012 when Zuma was president of the nation — reaffirms the Constitutional Court’s situation that it would be impermissible for a judge getting requested to recuse him or herself, to ask for that a courtroom or a further judge hear the application and choose on it. In take note 13(v) it is obviously mentioned that:
“Whether a choose should to recuse him or herself is a subject to be made a decision by the decide anxious and a decide ought not to defer to the view of the functions or their legal associates.”
If a person assumes that Zuma’s lawyers had been knowledgeable of this, they would have identified that their argument experienced no prospect of accomplishment possibly in advance of Zondo or before yet another court docket in a assessment software. They would also have regarded that a complaint to the JSC would basically be laughed out of court docket. The point that they nonetheless innovative this argument, implies that they were being not seeking to persuade Zondo or any of the other users of the judiciary who may listen to a assessment or an charm that the argument had lawful advantage. In its place, the argument seemed to have been aimed (or could have experienced the effect) of misleading the broader general public (or at minimum Zuma’s likely and precise supporters), into believing that Zondo acted in breach of his lawful duties and the Judicial Code of Conduct.
It is at this issue that we arrived in the period, not of bogus information, but of faux law.
Other features of the lawful method also propose that it was not principally aimed at securing any authorized victories, but instead at advancing a political argument aimed at persuading users of the community to guidance Zuma in his combat with the commission, hence bolstering his political guidance.
A few examples. To stay on the suitable aspect of the law, Zuma could have approached the significant courtroom on an urgent foundation to challenge the validity of the summons or to request the courtroom for some other aid to continue to be it. Right after Zondo made the decision not to recuse himself, Zuma ran away from the fee, alternatively of making it possible for his legal professionals to argue that he had “sufficient cause” in conditions of part 6 of the Commissions Act not to testify. And when the fee approached the Constitutional Court for an buy powerful Zuma to testify, Zuma declined to participate in the proceedings, regardless of the simple fact that he had a plausible argument to make, namely that the courtroom ought to not grant the get whilst his overview software in the recusal subject was staying regarded by an additional courtroom.
Instead of pursuing any of these legal avenues, Zuma, his foundation, and to a lesser extent his attorneys, have been attacking the commission in decidedly unlegal conditions. When calling it a “Slaughterhouse Commission”, making unsubstantiated allegations that judges had been bribed, and accusing the fee of bias towards Zuma, Zuma and his lawyers ended up not earning arguments sourced in legislation, but had been participating in populist brinkmanship.
There are at the very least two strategies in which these types of a strategy could most likely benefit Zuma.
To start with, if the approach manages to whip up ample indignation and hostility towards the commission and the judiciary, the hope could be that the chairperson of the fee, or judges who later on look at evaluate or charm programs, will be intimidated to these a degree that they will feel pressurised to subvert the legislation and rule in Zuma’s favour — inspite of the legal regulations demanding the opposite.
Even some critics of Zuma feel to have tacitly recognized the logic of his method, fretting about irrespective of whether the Constitutional Courtroom must impose a prison sentence on Zuma if it finds him to be in contempt of court, and whispering about the looming constitutional crisis. The assumption becoming that Zuma may possibly be far too potent to be pressured to obey the law.
Zuma and his supporters may well have concluded (wrongly, I imagine) that this was what took place in 2008 when Decide Nicholson declared the selection to cost Zuma illegal following Zuma’s supporters introduced a sustained attack on the judiciary and threatened civil war if he was charged. (Nicholson’s judgment was eventually overturned by the Supreme Court docket of Charm.) As was the situation in 2008, I believe that this approach will finally not be successful, because of to the integrity and dedication to the neutral application of the legislation of Zondo and the other judges of the Constitutional Court docket.
2nd, and maybe far more troubling, the assumption underlying this system is that political energy is in the end what actually issues in any lawful dispute, not what the law in fact commands. Put in different ways, it assumes that if a get together to a dispute is effective more than enough and has enough political assistance, he or she gets legally untouchable. When I say this kind of a particular person may well develop into lawfully untouchable, I do not necessarily mean that these types of a person will consistently safe lawful victories in authorized fora even when the law demands the opposite. Alternatively, I suggest that the particular person will in effect not be bound by judgments of courts or other legal bodies, since the judgments will not be enforced.
Sadly, the commission may have encouraged this perception when, at 1st, it treated Zuma far more favourably than other implicated people today, just about surely mainly because of his electric power and position as the former head of point out and because of his accusations that he was becoming victimised.
If this is correct, it would make feeling for Zuma to use the lawful process not to try out to gain the lawful argument, but instead to try to agency up his aid with sure sections of the general public. Boiling it down to its essence, the aim would be to whip up more than enough political assistance to turn out to be lawfully untouchable so that Zuma may possibly be capable to say: “It does not make a difference that Zondo and the Constitutional Court docket had ruled from me or even requested my imprisonment, since I am much too effective to be compelled to obey the law.” (The quick-lived existence of a team of younger guys dressed in camouflage uniforms outdoors Zuma’s Nkandla dwelling could be found as part of the identical system.)
Even some critics of Zuma appear to be to have tacitly acknowledged the logic of his tactic, fretting about whether the Constitutional Court docket must impose a prison sentence on Zuma if it finds him to be in contempt of court docket, and whispering about the looming constitutional crisis. The assumption remaining that Zuma may be too strong to be pressured to obey the law.
Most of us have no way of understanding how preferred or politically influential Zuma is and whether or not his marketing campaign has been thriving. We do not know irrespective of whether he is far more like the former Ciskei navy ruler, Oupa Gqozo, (whose well-liked assist hardly ever materialised when the crunch came), or extra like Nelson Mandela (who led the ANC to a 62% the greater part in the initial election). But, either way, it should really be irrelevant when thinking of what censure the Constitutional Courtroom should really impose on a private citizen uncovered to be in contempt of the courtroom.
If it will come to that — and there is no way of understanding irrespective of whether Zuma will eventually capitulate to keep away from imprisonment — there will only be a disaster if the Ramaphosa authorities fails to enforce the law out of a (likely misplaced) dread of Mr Zuma’s political electricity and impact or because of a misplaced belief that not all are equal just before the law. The authority and legitimacy of any democratically elected government partly rely on its capability and willingness to uphold the regulation, and its failure to do so if expected to do so, in this scenario, will be catastrophic for the legitimacy of the Ramaphosa govt and for democracy.
This is why we really should probably fret fewer about what Zuma and his supporters (which includes the handful of younger adult males dressed up in camouflage uniforms) may do, and fear more about regardless of whether the Ramaphosa authorities is really fully commited to the rule of regulation and to democracy, and as a result prepared to choose the vital actions (and face the political consequences) of upholding the legislation.
Let’s hope that President Ramaphosa — inspite of troubling evidence to the opposite — has the spine to uphold the rule of law and to stand up for the basic principle that no one, no issue how powerful or influential, is above the regulation. DM