Jacob Zuma wants to be South Africa’s next President
In 2023, Jacob Zuma, South Africa’s former President, registered his new political party uMkhonto we Sizwe (MK). The party is about to run in the next national elections in South Africa on 29th of May 2024 in direct competition with the ANC[1], which has been the ruling party since the end of Apartheid. Zuma was already a member of the ANC during the freedom struggle. From 2009, he was South Africa’s President until he resigned in 2018.[2] Zuma is the face of MK party, and the party wants to list him as presidential candidate in the upcoming elections. Based on sec. 30 of the Electoral Act[3] and sec. 47(1)(e) of the Constitution[4], the Electoral Commission (IEC) decided that Zuma is not eligible because he was sentenced to jail for 15 months in June 2021.[5] The Electoral Court (EC) of South Africa set the decision of the IEC aside.[6]
The Electoral Court’s ruling
The argumentation used by Zuma’s attorney according to press information and which led, at least partially, to the decision of the EC, is interesting.
It was stated that not allowing him to run for the elections would mean an infringement of his constitutionally granted rights of sec. 19(3)(b) of the Constitution.[7],[8] It was furthermore argued that his case is comparable to Winnie Mandela’s case in 2009[9], where she was allowed to be an electoral candidate after being sentenced to more than 12 months of imprisonment.[10] That her sentence was suspended, while Zuma got a remission was not mentioned, but exactly this detail is important as per her ruling “…she was not sentenced to an effective term of imprisonment, capable of being ‘completed’ within the meaning of section 47(1)(e).”.[11]
In the EC’s ruling[12], the remission is a central part of the argumentation, combined with the question of whether this impacts the sentence.
Sec. 19 of the Constitution[13] deals with the political rights of every citizen. The constitutionally granted rights can and should not be easily overthrown by a judgement.
According to sec. 30 of the Electoral Act of 1998 an objection can be made on the ground that a person is not qualified for elections[14], and according to sec. 47(1)(e) of the Constitution, a person is not qualified if “convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, […], but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. […].”.[15]
The EC had to deal with several questions, but in general the judge’s findings were that none of the answers would clearly lead to the objection to be dismissed.[16]
Yet, the final ruling is surprising. The EC found that the literal meaning of the part of sec 47(1)(e) referring to an appeal must be considered. The fact that Zuma’s conviction was delivered by the Constitutional Court (CC), which did not grant leave to appeal based on public interest according to sec 167(3)(b)(ii) of the Constitution, led to the conclusion that Zuma’s conviction is not one according to sec. 47(1)(e).[17]
The ruling’s effect
This means – for now – that Zuma can contest in this year’s election. For now, because following this, the IEC has approached the CC for Clarification on sec. 47(1)(e).[18] From my perspective, the ruling seems more political than legal. It should have had a different outcome.
The wording of sec 47(1)(e) is precise and the prerequisites are met in this case:
- Zuma was sentenced to imprisonment for more than 12 months.
- A suspension makes a sentence void, while a remission is a forgiving but does not invalidate the sentence. Winnie Mandela’s case cannot serve as a precedent.
- No leave to appeal was granted, which means this passage of sec. 47(1)(e) is not applicable.
Based on that, Zuma would not be eligible to be the next President of South Africa, he wouldn’t even be eligible to be elected in the National Assembly. But would that mean he could be excluded from the elections? One question is if it would make sense to include him in the elections, already knowing that he cannot be elected to be in the National Assembly or to hold the office of the President. The IEC decision would not have impacted the outcome, and approaching the EC would only have made sense if it was meant to stir up trouble to the elections and to get attention. It seems that the EC ruling is keeping Zuma in the game for another while, and he is going to take the country for a ride.
It will be interesting to see how the CC clarifies the case. I think, they must decide wisely and clearly to prevent anybody from destroying the credibility of South Africa’s democracy.
What if the Constitutional Court clarifies in favour of the EC interpretation?
If the CC decides to follow the EC ruling, in terms of constitutional interpretation, another question should be raised from my point of view:
According to sec. 88(2) of the Constitution, “No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.”.[19]
Zuma held office for more than one term. His second term would have ended in 2019, but he resigned in 2018.[20] So, he did not serve for two full terms. But taking and applying the Constitution literally, sec. 88(2) refers to a not fulfilled term as an interim office holder. It does not refer to a resignation of an elected and regular office holder. I am almost sure if the CC follows the EC ruling it will have to deal with this question later.
What could be ahead of South Africa?
So, if Zuma is eligible to stand for elections, and if he is re-elected, and if he is eligible to hold office for another term, and if he then finally accepts being elected, he will be sworn in to do whatever is in his power for best for South Africa.
If he then does not follow his oath, as he allegedly did before, sec. 89 of the Constitution[21] might become important. Whatever happens, we surely are and will be witnesses in an interesting time.
[1] African National Congress, ‘ANC – South Africa’s National Liberation Movement’ (5 May 2024) <https://www.anc1912.org.za/> accessed 5 May 2024.
[2] The Presidency of the Republic of South Africa, ‘Former President Jacob Zuma | The Presidency’ (30 April 2024) <https://www.presidency.gov.za/former-president-jacob-zuma> accessed 30 April 2024.
[3] Electoral Act 73 of 1998 1998.
[4] The Constitution of the Republic of South Africa 1996, Act 108 of 1996 (Republic of South Africa) sec. 47(1)(e).
[5] Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18 (2021) CCT 52/21 (Constitutional Court of South Africa).
[6] ‘South Africa’s Jacob Zuma wins court bid to contest upcoming election’ Al Jazeera (9 April 2024) <https://www.aljazeera.com/news/2024/4/9/south-africas-jacob-zuma-wins-court-bid-to-contest-upcoming-election> accessed 25 April 2024.
[7] Lunga Mzangwe, ‘Court to rule on Jacob Zuma’s election eligibility today’ The Mail & Guardian (9 April 2024) <https://mg.co.za/politics/2024-04-09-court-to-rule-on-jacob-zumas-election-eligibility-today/> accessed 1 May 2024.
[8] Queenin Masuabi, ‘Electoral Court ruling on Zuma has echoes of its judgment on Winnie Madikizela-Mandela’ Daily Maverick (10 April 2024) <https://www.dailymaverick.co.za/article/2024-04-10-electoral-court-ruling-on-zuma-has-echoes-of-its-judgment-on-winnie-madikezela-mandela/> accessed 29 April 2024.
[9] ibid.
[10] Freedom Front Plus v ANC & Another (02/2009)(31 March 2009) (2009) 02/2009 (Electoral Court of South Africa).
[11] ibid 8.
[12] Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others (0015/24EC) [2024] ZAEC 05 (26 April 2024) (2024) 0015/24EC (Electoral Court of South Africa).
[13] The Constitution of the Republic of South Africa (n 4) 19.
[14] Electoral Act 73 of 1998 (n 3) 30(1)(a).
[15] The Constitution of the Republic of South Africa (n 4) 47(3)(e).
[16] Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others (0015/24EC) [2024] ZAEC 05 (26 April 2024) (n 12).
[17] ibid 45, 92-94.
[18] ‘Electoral Commission approaches the Constitutional Court for Clarity on Section 47(1)(e) of the Constitution – Electoral Commission of South Africa’ (25 April 2024) <https://www.elections.org.za/pw/News-And-Media/News-List/News/News-Article/Electoral-Commission-approaches-the-Constitutional-Court-for-Clarity-on-Section-47(1)(e)-of-the-Constitution?a=AISDGvpz75ps1usOfX7oipctYQxHaGTy4Kf8EGcX+ok=> accessed 25 April 2024.
[19] The Constitution of the Republic of South Africa (n 4) 88(2).
[20] The Presidency of the Republic of South Africa (n 2).
[21] The Constitution of the Republic of South Africa (n 4) 89.
