In July of this year, the African continent and the rest of the world at large were shocked to witness the incarceration of former South African President, Jacob Zuma under current President Cyril Ramaphosa’s administration. What shook most political fanatics and general members of the public was not the arrest itself, but a sustained prosecution that led to a successful conviction and jailing of a former Executive President.
Conviction and jailing of former heads of State especially in their countries have always seemed far from possibility in Africa. Any proof of any standard would be hard-put to reach the weighty push that could warrant a successful prosecution of a former head of state and a renowned comrade of the struggle against the racial bigotries of apartheid. In the North of Africa, news breaks out that Said Bouteflika, the younger brother of former Algerian head of State, Abdelaziz Bouteflika has been successfully prosecuted for contempt of court during his tenure as a cabinet member. Said is believed to have been the brains behind Abdelaziz’s misrule since the latter was now frail to fully comprehend the socio-economic needs of the Algerian citizenry.
Do these events signal a positive step towards judicial emancipation in Africa?
Given the unlikelihood of the conviction of powerful former African Heads of States and government, there is a question that pops into the mind of a neutral observer. The question is whether or not the convictions are a sign that the third arm of government has gained teeth to bite even the political invincibles?
Judicial independence is a subject of immense scholarly debate around global governments. However, it is in Africa where the judicial arm is usually at its lowest. This low position is characterized by premeditated judgments in some cases, the active influence of the Executive into the administration of the judicial service commissions or departments, lack of meritocracy during appointments among other anomalies.
In Zimbabwe, there have been allegations of executive capture of the judiciary to the extent that the Chief Justice is said to be an implementer of the executive’s bidding in return for monetary and political favors. In South Africa, allegations of biased appointments of members of the judiciary at the expense of sound meritocracy have been bemoaned. Hence, there has been a settled belief that the judicial system in Africa has been more of a design to fit the democratic requirements of separation of powers than a democratic exercise. However, given the developments in Algeria and South Africa, one is conflicted on the genuineness and independence of the presiding judiciary. Questions of whether or not these judgments are hiding under the guise of judicial emancipation are most likely to be raised.
Is there a possibility of judicial settling of political feuds?
The African continent has been yearning that the judiciary assumes a tighter grip on the continent’s political gaffes. Calls for equal application as opposed to selective application of the law have been made against a backdrop of presumed political untouchables. The people have been yearning for the judiciary mechanisms in Africa to flex their legal muscles on current and former heads of States that have a penchant for abusing their offices, fanning rent-seeking, smuggling national resources, and subjecting citizens to gross violations of human rights.
This can be taken advantage of to create a comfortable landing for politicians to take advantage and apply populist politics while pushing a sinister agenda of settling political scores. Thus there is a possibility of appearance versus reality. Issues of power politics and political dynamics need to be taken into account. A close look into the circumstances surround the conviction is a key vehicle towards a possible explanation of the status quo.
Circumstances surrounding the arrests
Jacob Zuma has been accused of abusing his power during his tenure as a head of state for the Republic of South Africa. He is accused of promoting State capture and pilfering into the State coffers for his own personal benefit. The allegations that led to his jailing are viewed by legal positivists as criminal rather than political in substance. However, pro-Zuma political observers smelt a rat. For most of them, the arrests bore more political connotations than they bore legal implications. Legal positivists cite Zuma’s failure to attend the Zondo Commission as outright contempt of Court orders for which any citizen would bear the same criminal sanction. For them, whether it is a former President, powerful politician, or not is neither here nor there.
Political analysts are on record citing Zuma’s frail age as a factor that the Court could have taken into apt consideration. For these analysts, jailing Zuma at his age and given his political legacy creates toxic precedence for future judicial adjudications involving former African leaders . Thus, they are of the view that it is a politically charged move given that, Zuma is openly known to be against Ramaphosa’s leadership style and ascension to power. This became a public secret when Zuma opened his room for coffee with Economic Freedom Fighters CIC Julius Selo Malema at his Nkadla mansion. It is believed by pro-Zuma supporters that, Ramaphosa must have been irked by Zuma’s purported lack of loyalty thereby leading to a retaliatory response by Ramaphosa by way of judicial influence.
The interesting coincidence surrounding the cases is that both Zuma and Said were jailed for contempt of Court. It would seem that the move by the South African Constitutional Court to send Zuma behind bars motivated Algeria to follow suit. This was suggested by institutions such as the DeKlerk Foundation that emphasized that the Zuma jailing ensures the revamping of the Rule of Law in South Africa and Africa at large.
However, this is yet to be seen when other African former leaders or powerful political elites get successfully arraigned before courts of law, trialed, and, where they are found guilty, face the same fate as an ordinary person. This will help to come up with a concrete conclusion of whether or not Africa is experiencing a new level of judicial enhancement or is just a case of political dynamics where political vendetta leads to the prosecution of those who once sat at the top echelons of power.