By Moepeng Valencia Talane
The journey to the 2024 elections has presented South Africans with a lot of critical topics to ponder in relation to governance, policy, and the integrity of public office. We have more options in this election than before, and our responsibility in electing who takes this country forward is consequently more vital.
The recent battle in the courts between the Independent Electoral Commission (IEC) and former president Jacob Zuma provides an opportunity for examining our focus on the individuals we send to Parliament with our votes and why they deserve to serve us.
When you take away the politics involved in the case, regardless of the side of the fence you find yourself on, the Constitutional Court (ConCourt) ruling in favour of the IEC’s barring of Zuma from taking a shot at a seat in Parliament should help us hone the attention of voters and political parties alike onto Parliament’s role in shaping our democracy further.
For example, the Constitution may afford all adult citizens of this country the right to make political choices, and in so doing also pursue election in public office in support of those choices, but it also aims to protect the integrity of Parliament by temporarily barring convicted persons from taking that route. The recent case may feature Zuma, but the takeaway from it should be about the role that parliamentarians play in our democracy, and whether those who end up taking the oath are truly and genuinely invested in it.
Do they have the most basic respect for the rules that are in the public interest, and not just those of their party?
Monday’s judgment makes a very clear case for unambiguity in our constitutional law and is an eye opener for how our constitutional democracy really works. It is also a sobering verdict for the true meaning of the integrity of Parliament in that democracy, and by extension the people we should consider as fit for that role.
In the words contained in the ConCourt judgment, “…section 47(1)(e) [of the Constitution] temporarily keeps serious violators of the law out of the National Assembly. The purpose of the disqualification is aimed at maintaining the integrity of South Africa’s democratic regime, which is founded on the rule of law, by ensuring that members of the National Assembly possess the requisite respect for the rule of law.”
Testing the law
Zuma took the IEC to the Electoral Court when it barred him from his new party’s (MK Party) candidate list for Parliament on account of his 2021 contempt of court conviction by the Constitutional Court.
The IEC argued that it holds the authority in determining who qualifies to be on party lists, and that this authority is guided by a clear rule for candidates with a criminal record – that a period of five years should have lapsed since the end of the sentence relating to that conviction before the candidate can stand for election to Parliament.
While the Electoral Court disagreed with the IEC and found Zuma fit for inclusion on the list on account of his sentence having been both unappealable and short-lived thanks to a presidential pardon during the Covid-19 era, the appeal process initiated by the IEC ended in a different finding, and the ConCourt overturned the earlier ruling.
Zuma’s legal argument was based on a narrow element of section 47 – which the Electoral Court agreed with as stated above. The ConCourt, however, sought to offer a simple conclusion: that a sentence is a sentence, is a sentence. No regard should be given to which court imposed it, how much of it was effected, or whether it is appealable or not.
The judgment states:
Section 47(l)(e) contains two elements. First, it imposes a substantive disqualification. It disqualifies anyone convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine from being eligible to be a member of the National Assembly. Second, it contains a proviso, which is procedural in nature. The purpose of the proviso is to specify the time at which the substantive disqualification becomes operational. The proviso says that the time at which a person is regarded as having been sentenced is when either: (a) an appeal against the conviction or sentence has been determined; or (b) the time for such appeal has expired. The proviso is akin to a deeming provision insofar as it deems things to be what they are not – an offender is not regarded as having been convicted and sentenced for purposes of the disqualification as there is a chance of the conviction and sentence being overturned on appeal.
It later states:
The respondents argue, and the Electoral Court held, that the conviction and sentence contemplated in section 47(1)(e) of the Constitution is one that is appealable. Since Mr Zuma could not appeal against his sentence imposed by this Court, the sentence imposed on him is not a “sentence” for the purposes of section 47(l)(e). On this interpretation, where the conviction and sentence are imposed by this Court acting as a court of first and last instance, the disqualification from standing for and holding office will never come into operation.
The ConCourt further used case law to augment its finding, noting cases where lower courts unpacked pardons of convicted persons. It further ruled that the IEC did not exceed its powers in barring Zuma on account of Section 47, a point that has been exhausted by many public commentators on the topic in the weeks since the Electoral Court application was sought by Zuma and the MK Party.
Bigger than Zuma
There is no doubt that as our country evolves deeper in the dispensation it entered through critical negotiations in the early 1990s, so too will the laws that govern it also need to evolve and advance over time. The constant legislative amendments that happen in Parliament are testament to that very notion of change being constant and progressive, and the Constitution, though the ultimate law of the land, is no different. It too needs to be viewed as a piece of legislation that may have meant well in its foundation, but can be critiqued and praised equally this far down the road. Those who seek to make changes to it have to adhere to the processes in law that allow for that to happen, and do it in the best interest of all South Africans protected by the Constitution.
Granted, there are many things still wrong with our country 30 years into its democracy, from its struggling economy to the inequality that continues to haunt progress for certain sectors of our population, and more recently the worsening situation with basic public services. Hence the significant and competitive nature of elections this year.
But one of the assurances of the Constitution is that it promotes equality before the law and makes some provisions to separate those who respect it from those who don’t. This was demonstrated in the ConCourt judgment.
After all, the Constitution is an all-encompassing piece of legislation that sought to right all the wrongs of the apartheid era and arrive at a point where all South Africans can boldly declare themselves equal, especially before the law and before all public institutions made possible by it. The last point is the important lesson with which the ConCourt judgment has provided us. While in the political realm many may find the solutions sought to deal with Zuma’s controversies unnecessarily harsh and unbecoming, in the juristic realm he is one of us, the millions of South Africans who must play by the same rules every day, without fail.
The people who end up making up the country’s seventh parliament after the elections should be of a calibre that we as ordinary South Africans can truly look up to. They should be beyond reproach, be genuine and true to the oath they will take as members of Parliament, and be trustworthy.
Parliament belongs to the people of South Africa, those who vote for the members of political parties and independent parties that are nominated to sit in its structures in the interest of carrying out democratic processes contained in the Constitution.
Of course, the point may be made that the exclusion of candidates due to criminal records applies for the limited period of five years after the sentence has lapsed, but ConCourt has offered a valuable lesson in the need to respect the authority of democratic institutions like the IEC as arbiters of procedure.
