By Lehlohonolo Lehana.
The Electoral Court will on Tuesday deliver judgment on whether former president Jacob Zuma should be included on the list of candidates to Parliament.
Zuma’s name appears first on the MK party’s list, but the IEC in March announced that the former president is ineligible to stand as a candidate because of his criminal record stemming from a 15-month prison sentence imposed by the Constitutional Court in 2021.
The uMkhonto weSizwe (MK) party lodged an application to oppose the removal of Zuma from the list because of conviction and sentence by the Constitutonal Court for defying its order.
The MK party’s legal team told the court on Monday that Zuma was imprisoned without being afforded his constitutional rights to a free and fair trial.
The party’s legal counsel, Advocate Dali Mpofu, argued that if the court upholds the IEC’s decision, MK party supporters will be deprived of their right to vote for a candidate.
“We cannot afford, as a country, to disenfranchise former president Jacob Zuma, the MK party or whatever number of people who support them.
“They claim that it is millions of people. They may be right; we will know on May 29th.
“It doesn’t matter; it could be three people; their right to vote will be infringed because they will not have the right to choose to be represented by the person that they want,” said Mpofu.
He added: “In South Africa or any other country, we should be extremely cautious before we can deny the political rights of anybody. The mere reason that we have a constitution and the reason why we are here today is because people were denied the right to vote, the right to participate in politics and many other rights.”
Mpofu said the National Assembly should be afforded the power to manage its affairs.
“The National Assembly is entrusted with the power to manage its own affairs, one of its affairs is to determine who is a member and who is not a member.
“Ideally, if the IEC allows my person to be on the list now, and then in April, that person is sentenced to 10 years, what must happen? The IEC has nothing to do with it.
“The National Assembly must deal with it. It is the National Assembly that must tell that person that they are not eligible to be a member. The IEC does not enter anywhere in this,” says Mpofu.
Mpofu, further criticised the IEC, saying it had no power to determine membership of the National Assembly and describing its attitude towards his client akin to the apartheid regime denying people their political rights.
The IEC squared up the with MK party where they argued over the removal of Zuma from the list of candidates because of his conviction and sentence.
Advocate Thembeka Ngcukaitobi SC for the IEC argued that the drafters of the Constitution were clear when they crafted a section that bars people who have been sentenced to more than 12 months in prison.
Ngcukaitobi said law-breakers could not be allowed to be lawmakers.
“Zuma is one of the people precluded by the Constitution and that will never change,” said Ngcukaitobi.
That was what the Constitution outlined on the people who have been convicted.
Ngcukaitobi said Zuma was disqualified by section 47 of the Constitution to contest for a seat in Parliament.
The IEC was correct to uphold the objection against the inclusion of Zuma on the list of candidates.
Ngcukaitobi said the Electoral Act regulates the submission of lists of candidates. This is in line with the timetable of the IEC, which also calls for objections on candidates.
The law was specific that people who have been sentenced to more than 12 months in prison would not qualify as candidates for elections.
Section 47 of the Constitution was seeking to address this group of candidates who have a conviction.
Ngcukaitobi said contempt of court was a criminal offence.
“It is irrelevant that conviction came through a civil process. What is relevant is that contempt is a crime, and Zuma has been found guilty of a crime.
“It is true that it is not appealable, That is what the Constitutional Court found. It knew that it was not appealable. Zuma argued there at the Constitutional Court that it was unfair to convict him for contempt when he had no right for appeal, but the Constitutional Court decided against him,” said Ngcukaitobi.
On the sentence, he said Zuma was sentenced to 15 months by the apex court, but only served three months.
However, this did not take away the fact that the sentence was imposed by the Constitutional Court over his refusal to testify in the State Capture Commission of Inquiry into State Capture.
The fact that President Cyril Ramaphosa granted a remission to Zuma and thousands of other prisoners does not remove the 15 month sentence imposed by the court.
“Section 47 is about a sentence imposed by a court. The president has no power to impose a sentence.”
“We must not conflate this with remission. The remission did not change the sentence. The executive can say we are forgiving you, you can go home.”
The fact that judges of the Constitutional Court imposed a sentence of 15 months showed the offence was serious.
“What the constitutional drafters are telling us is that law-breakers cannot be lawmakers. We say the president has no power to change the sentence. He has the power to effect the period of release.”
Ngcukaitobi said they were not sitting at the Electoral Court to look at the sentence imposed by the court. That process was completed and it did not matter that Zuma served less than 15 months in prison.
Judge Dumisani Zondi said they will deliver the judgment on Tuesday to stick to the timetable of the Electoral Commission of South Africa (IEC) to make a decision on objections made against candidates contesting for seats in Parliament.
South Africa is to hold general elections on May 29 in what is expected to be the most competitive vote since the advent of democracy in 1994.
The 81-year-old was in court in Johannesburg as lawyers debated the case.
“If the masses want me to be president, what’s going to stop them?” a cheery Zuma told supporters, after the hearing. “Allow me to go and finish what I started.”
MK party largely relies on the considerable political clout still wielded by Zuma, who despite scandals and graft allegations is still popular, particularly among the country’s more than 10 million Zulus.