UP Law’s Prof Zozo Dyani-Mhango participates in Inaugural Round Table Conversation organised by the Nelson Mandela Foundation, Human Rights Festival and Constitutional Hill

Posted on April 06, 2021

 

On Thursday, 25 March 2021, Professor Zozo Dyani-Mhango in the Department of Jurisprudence at the Faculty of Law (UP Law) of the University of Pretoria (UP) participated in the inaugural Round Table Conversation titled ‘The Politics of the Rule of Law’. The Conversation was organised by the Nelson Mandela Foundation, Human RIghts Festival and Constitutional Hill.

This event was the first of the We, The People Round Table Series to commemorate the 25th anniversary of the Constitution of the Republic of South Africa, 1996. The Conversation was held in a hybrid format - both virtually and in the studio. Dyani-Mhango was invited to participate by retired Justice Albie Sachs from the Constitutional Court, with whom she sits as a member of the Albie Sachs Trust/Mandela Institute Joint Research Steering Committee, with the objective ‘to develop constitutional patriotism and scholarly acumen through acquiring and promoting understanding of how our Constitution was made’.

The other panellists of ‘The Politics of the Rule of Law’ Round Table Conversation were retired Justices Sachs and Kate O’Regan, and Khaya Sithole, a political analyst and talk show host.  Songezo Mabece, a lawyer and a radio host, was the facilitating host of this event. 

The Conversation was centred around questions such as how have we fared as a country in upholding the rule of law after 25 years of the Constitution?; How have the politics affected the rule of law?; and Which role do commissions of inquiry and courts play in strengthening the rule of law? The panellists each had four minutes for opening remarks, during which Prof Dyani-Mhango provided a brief understanding of what the rule of law entails, and its application to the principle of accountability. She argued that all those who exercise public power ought to be held accountable to the law as ordinary citizens and reiterated that accountability requires that there must be justification for the decisions made by those who exercise public power. She further contended that there is no respect for the rule of law if there is no culture of justification. 

Questions raised by the facilitator and audience inter alia included an interesting, but challenging question posed to Dyani-Mhango by the facilitator on her thoughts about former President Zuma’s refusal to appear at the Judicial Commission of Inquiry into State Capture, Corruption and Fraud in the Public Sector including Organs of State (Zondo Commission). The context to this question was that former President Mandela had volunteered to appear before the high court in the South African Rugby Football Union Case (SARFU and Others v President of the RSA and Others 1998 (10) BCLR 1256 (T)), when he did not have to appear, whereas former President Zuma is instructed to appear and yet he refuses to show up. Her response to the question was that it is important for accountability that former President Zuma appears before the Zondo Commission as no one is above the law. It is equally important for him to appear before the Commission as he had established it.

However, Dyani-Mhango also mentioned that the cases are different because even though former President Zuma had established the Zondo Commission, he is also exercising his constitutional rights such as questioning whether the chair of the Commission is biased against him. Further, Prof Dyani-Mhango wondered if it was a fair comparison as President Zuma is no longer a sitting president and has become a ‘private’ citizen, while former President Mandela appeared while he was a sitting president.

In response to the above, Dyani-Mhango states the following:  “What I found interesting as an academic about this part of the conversation are the questions implicitly raised: whether, by virtue of taking his presidential oath of office, former President Zuma is still bound by that oath as a former President. Further, does he have a moral duty or legal duty to ensure that he still abides by his oath of office even after retirement? And does breaching that oath of office entails that former President Zuma, as some have argued, will lose his pension benefits? I do not believe that the latter will happen. However, it remains to be seen as the Constitutional Court is ceased with the matter of deciding whether to sentence former President Zuma to prison for two years for failing to appear before the Zondo Commission as requested by the Commission (Secretary of the Judicial Commission of inquiry into Allegation of State Capture, Corruption and Fraud in the Public Sector Including Organs of State v Jacob Gedleyihlekisa Zuma CCT 52/21)”.

Other important issues raised and discussed by the panellists in this Round Table included land redistribution and the Truth and Reconciliation Commission’s unfinished business in relation to the failure to prosecute apartheid crimes.

Dyani-Mhango concluded her participation regarding the failure to prosecute apartheid crimes and argued that such failure to prosecute apartheid crimes as a crime against humanity by the National Prosecuting Authority amounts to the lack of accountability.  In her view ‘There is no moral ground to stand on over a lack of accountability in the present if we have not created the culture of accountability from inception (the coming into effect of the Constitution).’

Justice Sachs concluded afterwards that ‘This inaugural Round Table Conversation was bouncy, textured, rich and a great launch of the series’.

- Author UP Law / Elzet Hurter

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