The arrest of Zuma: Rule of law or justice?

By The Independent | Jul. 22, 2022

Beyond the narrow focus on civil and political rights by TCs, a critical component of many TCs in developing countries is the adoption of neoliberal economic policies at the behest of international lenders, whose direct result has been that post-recovery schemes ‘focus on military intervention to keep the peace, humanistic relief to address immediate socioeconomic needs, and macroeconomic stabilisation’.

Continuation from last week THE reaction of President Alan Garcia upon coming into office in 2006 was to label the protesters ‘terrorists’.

According to the analysis, the Guatamalian and Peruvian post Truth and Commission (TC) experiences “provide compelling evidence of a causal relationship between violence and structural inequalities”.

John Saul, quoted by Lisa Laplante – in an article on Transitional Justice, points directly to the South African post 1994 scene, noting that South Africa followed the global trend of neoliberal economic policy, which made ‘victims of apartheid into victims of neoliberalism’.

This doctrine sees the implementation of privatisation, downsizing and retrenchments, and a general reduction in public expenditures and services.

One result is that inequality increases relentlessly, which in turn sooner or later threatens the viability of the post TC governments, try as they may to improve the economic wellbeing of the majority of the previously disadvantaged.

This fact combines together with the fact that a demographic shift occurs about 20 years after the new post struggle regime takes over, as young voters, who never had first-hand experience of a past struggle for democracy, first qualify for the vote.

Confronted with difficult economic circumstances, this generation ‘that knows not Joseph’, presents fertile ground for an alternative to the ‘struggle’ party.

Keep Reading

Because the young generation in developing countries, typically outnumber their parents, ‘struggle’ based ruling parties such as South Africa’s face the abiding threat of loss of power after the first two decades of ‘emancipation’.

The focus of the electorate, of course, would be on the performance and competence of the governing party. As an offshoot of neoliberalism, matters of governance assume increasing importance, while the systemic cause of inequality remains out of view.

The inegalitarian tendency of market based economics combines with the unpredictable voting patterns of the young generation to all but ensure that once popular liberation parties face mounting unpopularity and protest.

This combination of demographic change and the impact of market economics constitute the ‘powder keg’ referred to in I Muvingi’s 2009 contribution to the Journal of Transitional Justice.

Thus Robert Mugabe’s government in Zimbabwe found itself face-to-face with a new opposition that possessed the critical mass to dislodge it from power – 20 years after gaining independence from Britain. This is not to say official and private sector corruption has no role – but it is most probably secondary.

Thomas Picketty, in Capital in the 21st Century, adds another dimension: He notes that countries that have a preponderant foreign ownership of their capital face constant instability because of the apparent justification of calls for expropriation of the foreign owned assets.

On the other hand, incumbent regimes seek to protect the existing property ownership structure, and argue that instability will cause capital flight. Hence, there is the constant threat of political upheaval.

An investigation of post TC instability in Argentina noted the high level of distrust people have of the government’s will to protect fundamental socioeconomic rights, as well as’ feelings of historical exclusion that build resentment of third party foreigners’.

An understanding of these dynamics is critical- aided by national dialogue on how these conditions constitute violations of basic human rights – failing, which ‘leaders may manipulate popular opinion to reject the grievances of the poor, marginalising them as terrorists and even criminalising their protest’.

Surveyed through the lense of this post TC experience where the market driven economic paradigm has been adopted, the developments in South Africa leading up to and following the arrest of Zuma follow a familiar, almost predictable pattern: decreasing popularity of the ‘liberation’ ruling party, increasing protest, and even violence, state reliance on the security apparatus to enforce ‘the rule of law’, government characterisation of violent protest as insurrection, and deployment of the military.

The political context in 2021

Assertions made about the implications of South Africa’s constitutional democracy offer tools for understanding events around the arrest of former South African president Jacob Zuma.

Richard Wilson in his book The Politics of Truth and Reconciliation in South Africa: Legitimising the Post-Apartheid State — discusses the genesis of South Africa’s version of democracy (constitutional democracy), as well as its implications.

The background to the rise of constitutional democracy is the end of the Cold War in 1989, along with the collapse of authoritarian regimes that were part of the now-defunct USSR, or which were propped up by it.

The collapse of forced unity imposed by the USSR threatened to stir up nationalism, as the former USSR fragmented. Intellectuals in Europe, therefore, promoted human rights and the establishment of constitutional democracy as an antidote.

Advocates of constitutional democracy advance the view that nations must not be constituted on the basis of race, ethnicity, language or religion, but on a ‘community of equal rights-bearing citizens, united in patriotic attachment to a shared set of political practices and values’.

It is instructive to note the following:

Firstly, that ‘in this formulation, human rights are portrayed as the antithesis of nationalist modes of nation building’. This is relevant to explaining the amnesia concerning the history and heroes of the South African liberation struggle – including Zuma’s 10 years on Robben Island.

The assertion made is that ‘the nation of citizens does not derive its identity from some common ethnic and cultural properties, but rather from the praxis of citizens who actively exercise their civil rights’.

Further, (as Ignatieff asserts) in this civic nationalist creed, ‘what holds society together is not common roots but common law’. The constitutional democratic model, therefore, implies that South Africans are such, not because of their descent or ethnicity, or language, but because they subscribe to a given constitution and exercise certain rights.

This ‘Identity as action’, rather than ‘identity as being’, appears antithetical to SA’s professed creed of ‘ubuntu’— based as the latter is on the idea of community, rather than individualism. To put the matter beyond doubt, Ignatieff states: “The concrete practice of claiming citizenship rights creates a political culture, which displaces ethnic nationalism and defeats the romantic politics of ethnicity, culture, community or tradition”.

Hence the effect of the constitutional state is to decollectivise the nation, and deactivate the politics of the struggle-making the history and ideals of former liberation movements irrelevant.

Another result is that it necessitates the reliance on law, and the rule of law, to protect and draw on those rights. Hence Wilson states that the South African transition “emphasised legal technical mechanisms” more than other transitions.

So much so that the term ‘legal fetishism’ can be applied to the nation in reference to ‘the increasing legalisation of political issues.’ This emphasis on legality is open to interpretation as an instance of Max Webers ‘iron cage of rationality’: “Human rights constitute an element of the onward march of legal domination identified by the sociologist Max Weber in the nineteenth century”.

They subordinate the life world of social agents to the systemic imperatives of nation building and the centralisation of the legal and bureaucratic apparatus. Rights transfer political problems into technical ones and thereby remove them from the reach of parliamentary legislation

Thus, the implications of the constitutional democracy adopted at the end of the apartheid state are to decollectivise society — and thus depoliticise pre-apartheid and post-apartheid collective struggles, while at the same time bringing about increased legalisation.

The second major element in the political and economic environment post-apartheid is the introduction of neoliberalism- ie, rule by the market. This is the subject of Wendy Brown’s book Undoing the Demos — ‘demos’ being the root behind democracy.

Democracy is rule by and for ‘people’. Brown shows that neoliberalism’s ‘stealth revolution’ is bringing about rule by and for ‘something else’ — the market.

Herein lies a possible explanation for the emphasis on the prosecution of alleged commercial and governance offences, rather than crimes against humanity.

Several assertions are made concerning the character and impact of this creed:

The first is that it is ‘hostile towards politics’, which it replaces with ‘governance and new management’.

In a thoroughgoing analysis of neoliberalism, Brown asserts that neoliberalism expresses itself through hostility towards politics — as already seen — the displacement of liberal democratic legal values and public deliberation with governance and new management.

It economises what was previously political, replaces a political lexicon with an economic lexicon, and in fact constitutes ‘rule by something else’— other than the demos- the people. Ultimately, it vanquishes and unseats homo politicus – the political being — and installs and exalts ‘homo oeconomicus’.

One of the elements of neoliberalism – governance — having become ‘neoliberalism’s primary administrative form’ is emphasised under the sway of neoliberalism: governance, not discussion and contestation about issues of justice — becomes the modus operandi under neoliberalism.

So much so that while politics would require that a problem be examined in its wider context and regarding its implications, governance is content to ‘let the law take its course’.

In this connection, it is interesting to note Julius Malema’s assertion at the time of Zuma’s arrest that “this is a political problem, which requires a political solution”, and the official insistence on treating it entirely as a governance matter.

Which brings us to the matter of the definition of justice:

In paragraph 17 of the Preface to the Truth and Reconciliation Commission (TRC) Report, the late Archbishop states that “it has been said that the Past is Another Country”. This is in fact the title of Martin Meredith’s book The Past Is Another Country: Rhodesia: UDI to Zimbabwe (London, Pan, 1980).

On page 20 of that book, Meredith points out that “The white man had indeed brought western-style law and order to Africa – but not justice”. His point is that “western-style law and order”, and by extension ‘the rule of law’- do not necessarily equate to justice.

In fact they can be used to maintain an unjust setup. Bowsher suggests that the TRC developed a new concept of justice – obviously suited to transition.

Meister, whom he quotes declares that “the TRC delivered reconciliation as justice”, which he contrasts with “justice as struggle”. Thus Pieter Willem Botha apparently benefited from this transition — based definition of justice, even though Archbishop Tutu believed that Botha’s practically token appearance at the High Court demonstrated that ‘no one is above the law’.

In effect, in that instance, the politics of reconciliation and transition suspended justice as the rule of law.

In conclusion, if the arrest of Zuma is regarded as merely a legal matter, a matter merely concerned with one individual’s encounter with the law, and moreover a matter that demands rigid enforcement of ‘the rule of law’, then one sees Brown’s characterisation of neoliberal democracy, and Wilson’s assertions about constitutional democracy written all over this episode in South Africa’s history.

The rigid enforcement of law and order driven by the assumption that it equates to justice suggests that ‘governance’ is indeed at work.

If — as Brown asserts — ‘homo oeconomicus’ has vanquished and caged ‘homo politicus’, the arrest of Zuma the symbol becomes a symbol of the arrest of the struggle he symbolises. In this context, can the current constitution and economic system deliver not only law and order but also, justice?

Perhaps it is time for a justice commission?