The big news out of South Africa this week was the decision by that country’s Constitutional Court to sentence Former President Jacob Zuma to 15 months in prison for contempt.
We will not get into the nitty-gritties of the contempt case, which is after all a sideshow in itself when one considers the mere fact that it stems from a bigger matter to do with alleged official corruption on the part of Mr Zuma, and claims of the executive leaning on the judiciary for personal political reasons on the part of the ex-president’s accusers.
What caught our attention was the inevitable clamour about the state of the South African judiciary, which Mr Zuma’s supporters accuse of being an extension of white monopoly capital and a powerful lingering vestige of apartheid.
It is an accusation that has been raised several times since the official end of apartheid in 1994.
Harvard scholar Garikai Chengu has in times past said, “The ultimate protector of (…) entrenched elites (in South Africa) is the judiciary. The composition of the courts has changed little since the end of apartheid… The greatest challenge is unseating the entrenched elite that not only control the swords and bullets but also control the media, police, judiciary and legislature.”
This time around, the anger is about how the South African courts can jail a celebrated liberation fighter like Mr Zuma, while protectors of apartheid like Frederik Willem de Klerk can snub judicial processes and even get Nobel Peace Prizes.
Of course, it is no justification to say if one person thumbed his nose at the law then another also has the right to do so. That would simply serve to undermine the rule of law.
Rather, the issue becomes one of what is good for the gander should be good for the goose.
More importantly, the hue and cry coming out of South Africa provides a good opportunity for Africa to introspect on the state of the judiciary and its relevance to a post-colonial Africa and, indeed, a neo-colonial Africa.
Which gives occasion to recall a paper by Professor Ali Mazrui titled “Language and the rule of law: Convergence and divergence”. Forgive us for quoting from the paper at length, but we believe it cuts to the core of the real issue at hand.
Prof Mazrui says, “The official language of almost every constitution south of the Sahara is European. Sub-Saharan constitutional law is almost entirely Eurocentric in that sense.
“Every right, every civil liberty, has to be interpreted in terms of its meaning in the relevant Euro-colonial language. In addition to the substance of the law being itself culturally derived from the West, there is the additional embarrassment of the official language in which the law is expressed – a special case of double-jeopardy!
“… Of the three branches of government (executive, legislative and judiciary), the judicial branch has often been the least Africanised… The concept of ‘due process’ is diluted as a result.”
The result, taking from the above, is that many Africans feel alienated from their constitutions and the institutions that are supposed to uphold it. There is often mistrust of the judiciary, which is seen as an appendage of foreign interests.
So serious is this mistrust that even a former president does not feel safe appearing before a commission of inquiry!
Conversely, what this divide also does is it allows elites to hurl abuse at the legal system. So while on the one hand it can be argued that Mr Zuma and his supporters do not trust the judiciary in South Africa, it can also be argued that Mr Zuma is taking advantage of ordinary South Africans’ alienation to try and wiggle out of a jam.
In essence, the lack of Africanisation of the judiciary is a double-edged sword which alienates the majority; and also allows elites to abuse their positions to both persecute their political and business rivals, and for elites to try and cocoon themselves when they do wrong.
Prof Mazrui continues, “Africa is paying a higher price for Euro-constitutionalism than Africa realises. The fact that African constitutions are almost exclusively in European languages has slowed down the development of a new constitutionalist culture in Africa.
“African citizens are not learning to think in constitutional terms, partly because they live in political systems which stifle the development of indigenous constitutional vocabulary.
“How many indigenous languages have words for ‘freedom of conscience’ or ‘collective responsibility?’ Do African citizens have the remotest idea of what their constitutional rights are supposed to be?
“This lingo-legal divergence has created a conceptual void in the intellectual universe of the average citizen. There is a conspiracy of silence afoot among enemies of constitutionalism in Africa… The silence is politically and morally deadly.”
In short, there is need for Africa to start Africanising its judiciary.
This does not simply mean appointing African judges. It means legal scholarship has to increasingly become rooted in our historical, contemporary, cultural and social realities. This will lead to the emergence of a cadre of judicial officers who are truly African.
Secondly, it means translating constitutions and laws into languages that the people understand. It is not enough to merely provide a translator in courts and then arrogantly parrot “ignorance of the law is no excuse” when we cannot even tell our people what “criminal evidence and procedure” means in their own languages.
Thirdly, we need to dispense with this nonsense of judges wearing wigs and robes that make them look like poor caricatures of Victorian judges in stuffy European courtrooms. That dress code is as alienating as the Latin buffoonery that we expect our rural folk are expected to understand when they are hauled before the courts.
If we cannot address these core issues, justice will continue to be a foreigner in Africa, and our people will continue to disrespect the courts and refuse to identify with them as a key pillar of the state.