14 December 2017

South Africa: The Real State of Emergency Under President Zuma

analysis

10 December 1996 was a historic day for South Africa.

On that day President Nelson Mandela signed the final Constitution into law at Sharpeville, Vereeniging. Sharpeville is etched in our collective memory of pain. It was there that police opened fire on crowds protesting against the pass laws in 1960. But, it was also at Sharpeville that the Treaty of Vereeniging was signed between the British and the Afrikaners. This disenfranchised black people and set in motion a trajectory for the apartheid state.

The Constitution was our very own product borne out of the transition to democracy and painstaking negotiation.

The draft of the first constitution-making process served as an interim Constitution pending the drafting of a Constitution by a democratically elected Constitutional Assembly. Between January 1995 and May 1996, the Constitutional Assembly met to draft the final Constitution and on 8 May it was forwarded to the Constitutional Court for ratification.

The Constitutional Court ruled in September 1996 that the new Constitution failed to adhere to principles stated in the interim Constitution. A revised draft was submitted to the Constitutional Court and signed into law only after further negotiation.

It is worth remembering this history as South Africa watches the ANC hurtle towards its elective conference this week. We have watched Jacob Zuma systematically undermine the Constitution and violate its spirit repeatedly during his presidency.

We are all sullied by this violation of our founding document. The court judgment in the Mxolisi Nxasana matter last week regarding Zuma's powers to appoint a National Director for Public Prosecutions was extraordinary.

It was extraordinary for the language the court used to chastise the president for his delaying legal tactics as well as his inherent conflict of interest in the matter because he is compromised by his own acts of corruption. Predictably, Zuma is appealing the matter. After all, it is in his interests to control the Prosecuting Authority.

But in a further irony, as we celebrate 21 years of our Constitution, we read this week of draft state of emergency regulations that seem to emanate from the SANDF. A state of emergency? One wants to do a double take because the last time we heard those words were in the dreaded 1980s when PW Botha declared a state of emergency for most of the 1980s.

This was in response to mass protests across South Africa when the Tricameral Parliament was established. The Botha regime's 'total onslaught' on mass democratic movements had begun and the forces of change were unwittingly also released during those turbulent years.

But back to 2017 and a democratic South Africa. Why on earth would the Zuma government want to draft such regulations, and who is actually behind these? It's hard to tell as the SANDF has been opaque about the leaked document, to say the least.

As if to provide context, however, former State Security Minister David Mahlobo this week lamented that there was 'too much information' in the public domain that was leaked and that this was a threat to national security. The Presidency, for its part, denied the very existence of the draft regulations.

But in a sign of how little we trust the Presidency, no one really believes that statement. Either the president is involved (which would not be unlikely), or he has given the SANDF the go-ahead through a wink and a nudge.

Another likelihood is that because Zuma has during his tenure done what he could to create a securocrat state - whether it is through the Protection of State Information Bill, the reworking of the National Key Points Act, signal jamming at Parliament and other means - there are those within the state who feel emboldened to start drafting state of emergency regulations because they wish to clamp down on dissent either within or outside of the ANC.

Could Zuma be trying to use these kinds of regulations after the ANC conference assuming there is mayhem? Or, ahead of the 2019 election? We don't have the answer, but we do know enough about the president to know that he operates in the shadows and that he would be comfortable with limiting civil and political rights.

The problem for Zuma and his cronies is that the document has been obtained by journalists and so whatever its status, it is now in the public domain. Also, despite the scare-mongering and intimidatory tactics of the state, this is not the 1980s. Thanks to those early negotiations, we now live in a constitutional democracy.

We know Zuma is uncomfortable with this, as are a faction of the ANC such as the inept and incoherent Social Development Minister Bathabile Dlamini who launched a scathing attack on judges just this week after the Nxasana judgment. She is not the first senior ANC member to do so and will not be the last.

But the rants do not change the facts. The current situation is that South Africa passed a State of Emergency Act in 1997. This was done in accordance with s37 (1) of the Constitution which states that, 'a state of emergency may be declared only in terms of an Act of Parliament and only when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency', and s37 (1) (b) goes on to state, 'the declaration is necessary to restore peace and order.'

The Constitution then goes on to deal with the process by which the declaration of a state of emergency must happen and then crucially, s37 (3) provides the following protection when it says that 'Any competent court may decide on the validity of a declaration of a state of emergency, any extension of a declaration of a state of emergency; or any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.'

So the idea that citizens would be powerless to challenge the constitutionality of any such declaration is incorrect. The draft regulations doing the rounds include cracking down on dissent, curfews, shutting down the internet and other authoritarian measures. Funny how that sounds like something straight out of the apartheid playbook.

Living in a constitutional democracy means that this information has become available through a free media digging and doing its job.

However much President Zuma and his enforcers and enablers wish to clamp down on fundamental rights, their actions will be challenged legally. And, on the face of it, the draft regulations appear ripe for challenge.

If the ANC ahead of its elective conference needed any proof of quite how dangerous and desperate Zuma has become, the fact that we are even mentioning the words 'state of emergency' should be yet another wake-up call.

The choice at Nasrec is, therefore, a clear one: Zuma's proxies have to go and he himself should be recalled. As for Zuma, he would do well to remember the price PW Botha paid for 'total onslaught'.

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