Laws, in particular the constitution, are drafted so they can apply to many different factual scenarios into the future.
But when the drafters of the constitution decided to disqualify people convicted of serious offences from being MPs, they probably did not dream of the scenario South Africa now sits with: a former president, sentenced by the country’s highest court to 15 months in prison for contempt, wanting to go to parliament.
It should not be forgotten what Zuma was held in contempt for: he refused to obey a summons to give evidence before a commission of inquiry that he established. He “wilfully undermined the constitutional order” and “insulted the constitutional dispensation”, said the Constitutional Court. When the state capture commission went to court to compel him to give evidence, he would not go to court to argue his case.
Then, shortly after he was incarcerated, he was unlawfully released on medical parole. That was set aside by the courts. The very day he was returned to prison he was, with thousands of other non-violent offenders, granted a 12-months “special remission” of sentence. A threat that this also would be challenged in court failed to materialise.
From the start, there has been litigation. Every step of the way, the laws of South Africa, and the rule of law, have been tested sometimes to their limits. Now, section 47(1)(e) of the constitution is being similarly tested. The section disqualifies anyone “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” from being a member of the National Assembly.
In a ruling that surprised many, the electoral court ordered that Zuma should be allowed to stand. The court is yet to give its reasons but the Electoral Commission has urgently gone to the Constitutional Court on appeal.
In its application for leave to appeal, the commission asks the Constitutional Court to consider the purpose of the section: “The constitution prescribes consequences for breaking the law. A lawbreaker should not be a lawmaker ... In that sense the constitution serves a public interest, ensuring that members of parliament are not people who have been found guilty of serious crimes by our courts.”
One of the arguments the uMkhonto weSizwe Party and Zuma made when they went to the electoral court was that the effect of the special remission was to extinguish a portion of the sentence — so that Zuma’s sentence was effectively reduced to three months. He was not hit by the prohibition in section 47(1)(e), they argued.
But the purpose of this 12-month limit, said the Electoral Commission, is to disqualify those who have committed serious offences — “no matter how much of the sentence the offender ultimately serves”.
Even on a purely textual interpretation, Zuma would be disqualified because what is relevant is the length of time the sentence is imposed for, not the length of time served, said the commission.
Without reasons from the electoral court, it is unclear which of the MK Party and Zuma’s arguments persuaded it to grant the order in their favour and why it was not persuaded by the Electoral Commission
The Electoral Commission says its interpretation is in line with the separation of powers: courts convict and determine a sentence, which is the maximum time a person serves. While the legislature and executive may determine how much of that sentence a person serves, this does not change the sentence determined by the courts.
“This distinction ... could be elided by the approach that seems to have been taken by the electoral court. The president cannot change the fact of a conviction and sentence. It is the fact of a conviction and sentence that matters for section 47(1)(e),” said the commission in its application for leave to appeal.
However, Zuma’s and the MK Party’s court papers said: “On a purposive and contextual purposive interpretation, it should not matter whether the sentence would be reduced or removed as a result of an appeal or a presidential pardon, reprieve or remission of sentence.” They argued that the section had to be read together with section 19 of the constitution which guarantees adult citizens the right to stand for public office and, if elected, to hold office.
Without reasons from the electoral court, it is unclear which of the MK Party and Zuma’s arguments persuaded it to grant the order in their favour and why it was not persuaded by the Electoral Commission.
Zuma also argued that since his contempt conviction happened during civil proceedings (not a criminal case) and he was not a criminal accused, section 47 did not apply to him.
The Electoral Commission said there was “no doubt” that contempt is a crime: “As this court has explained time and time again, the procedure for contempt is a hybrid or amalgamation. But the outcome is a conviction for a crime.”
It is unusual for an application to be made to the Constitutional Court when there is no judgment. The commission is not in a position to tell the apex court where it thinks the electoral court “erred”.
But the commission said it simply had no time to wait for reasons: “If this matter is not finalised before [the elections], there is a real risk that the erroneous finding of the electoral court will produce a disputed election outcome.”
It said the appeal raised important and new questions of constitutional interpretation. And, because Zuma and the MK Party also accused the commission of bias, it “should not be required to conduct an election under a cloud that it has been biased or favoured a side”.
The electoral court has at least given an order. But unless reasons come soon, the commission is asking the Constitutional Court to be the last court to decide the case without the benefit of another court’s reasoning, which is also a specialist court. This is something the apex court has in the past been reluctant to do.
