Perhaps all those antidemocratic forces in our country who want to change our constitution to have a more accommodating environment in which to commit crimes should have a rethink. It turns out that a democracy could actually be a great place from which to run a dictatorship. A recent ruling by the Supreme Court of the United States, the nation that sometimes functions as a bellwether for democracy, has decided that US presidents are immune from prosecution if their crimes were part of official actions.
Quoted in The New York Times, one of the three dissenting judges, justice Sonia Sotomayor, said that the majority in the Supreme Court had “invented a ‘law-free zone’ around the president that will remain a ‘loaded weapon’ for future occupants of the White House to wield”.
The publication quotes her as writing: “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
She also listed some “nightmare scenarios”:
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
You say “nightmare scenarios”; I say “dream come true”. One person’s nightmare scenarios are another person’s state capture, and I can really see this form of democracy catching on with dictators looking for a market-friendly rebrand.
As The New York Times put it: “The Supreme Court’s decision to bestow presidents with immunity from prosecution over official actions is an extraordinary expansion of executive power that will reverberate long after Donald J Trump is gone. Beyond its immediate implications for the election subversion case against Mr Trump and the prospect that he may feel less constrained by law if he returns to power, the ruling also adds to the nearly relentless rise of presidential power since the mid-20th century.”
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune
— Sonia Sotomayor
It’s not just presidential power in the US that’s starting to feel unhinged from accountability. Part of the problem we have in South Africa is that our politicians are also scornful of the courts, and of the law in general. Most of you will tell me, pityingly, that the ship has sailed already, loaded up with our country’s resources and heading for India (via Dubai, of course). But it does seem as if things have become worse this election cycle. Are we starting to see even more brazen disregard for those norms of parliamentary accountability we used to believe were part of what it meant to take an oath to serve your country?
The New York Times articulates the dilemma, which is essentially that laws weren’t set up to cater for things that you couldn’t imagine happening. “No former president before Mr Trump has been charged with committing crimes while president. That has raised the question of whether previous presidents were immune and the justice department under President [Joe] Biden broke a norm by allowing a special counsel to charge Mr Trump — or whether it was just that most other presidents were not criminals.” I do like the use of the qualifier “most”, though.
I think of the reaction of EFF secretary-general Marshall Dlamini, who was recently given an 18-month prison sentence, suspended for five years, for assaulting a policeman in the lobby of parliament during one of the EFF’s patented parliamentary altercations, this time during 2019’s state of the nation address (Sona). The Cape Town magistrate’s court also imposed a fine of R6,000, or an alternative of three months in jail.
Dlamini was found guilty of assault with intent to cause grievous bodily harm and malicious damage to property after hitting the policeman in the face and breaking his glasses. Dlamini claimed that he was courageously foiling an attack on his CICFLBDJ (Commander-in-Chief For Life and Benevolent DJ), Julius Malema. And in fact, EFF spokesperson Leigh-Ann Mathys went further than insisting that Dlamini was defending the EFF leadership, and is quoted by the SABC as saying: “The rationale used by the court in the sentence reaffirms in our view that the case in its entirety was vindictive and it was part of a broader attempt to provoke and criminalise the leadership of the EFF. It is our firm view that there was a premeditated agenda to prevent the leadership from executing its legislative responsibilities at the Sona on that day.”
Outside the Cape Town regional court, Dlamini was reportedly applauded when he said: “What I did that day, I can do ... again.” So much for the law as a deterrent.
According to News24, magistrate Nasha Banwari said in her pre-sentencing remarks that “there is no place for Dlamini’s conduct in a society already living with high levels of violence”.
She said: “Your actions towards the complainant [were] totally unwarranted in the circumstances. You maintained throughout this trial you did not know he [Johan Carstens] is a policeman. He was on duty performing his functions. An attack on a member of the SA Police Service unprovoked, is unacceptable. That is not what a responsible person would do in the circumstances. Communities expect a high level of responsibility by its leaders. When a leader resorts to violence, the interest[s] of society are undermined.”
You’ll be happy to know that punching a policeman in the face does not disqualify you from being a member of the South African parliament, so in fact there is a place for Dlamini’s conduct in an already violent society. The fact that Dlamini’s sentence is suspended means he retains his parliamentary seat. The Daily Maverick writes that, according to section 47(1)(e) of the constitution, an MP is disqualified if convicted and sentenced to 12 months or more in prison without the option of a fine. “As Dlamini’s sentence is suspended, he does not face immediate disqualification.”
We are afraid, and should be, that in the near future some media house is going to be running a series called Parliament Capture
Still, at least Dlamini got a gentle slap on the wrist, even though he appears to have interpreted that as more of a pat on the back. The sort of immunity that the Supreme Court is giving US presidents appears to preclude even that. The New York Times writes: “So presidents may freely abuse those powers with absolute immunity from later prosecution. At a minimum, this category clearly includes those listed in the constitution, like granting pardons or vetoing legislation. But the majority opinion said this category also extends to Mr Trump’s attempt to get justice department officials to gin up inquiries into sham claims of voter fraud.”
One of the assenting judges wrote that “a president has ‘exclusive authority over the investigative and prosecutorial functions of the justice department and its officials’. By that measure, he said, the president ‘may discuss potential investigations and prosecutions with his attorney-general and other justice department officials’ under the constitutional duty to ‘take care that the laws be faithfully executed.’”
There’s your “get out of jail free” card right there.
Inevitably, one has to haul out George Orwell’s satirical novella Animal Farm again. You might remember that one of Animal Farm’s founding commandments was that “all animals are equal”, which eventually morphed into “all animals are equal, but some animals are more equal than others”. It seems that this is where we are with politicians now, or less melodramatically, this is where we are headed if we don’t take intervening action.
One scofflaw doth not a winter make, you’ll tell me. But when we look at just how many parliamentarians in South Africa have, to put it mildly, thought it absolutely fine to skirt around the letter of the law, we are wise to be concerned. I’m not actually sure why I’m using such restrained language. We are afraid, and should be, that in the near future some media house is going to be running a series called Parliament Capture.
For better or worse, the US is a leading role model when it comes to a certain type of democracy. The “for better” bit is problematic enough, but it’s when the tinpot dictators of the world are starting to use US democracy as a role model to enable their autocracies that we’ll really start to feel the effects of “or worse”.
As The Economist put it, “Americans have good reason to wonder how much protection their system guarantees them against the authoritarian impulse rising around the world. The lesson is that what sustains the American project, as with any democracy, is not black-letter laws but the values of citizens, judges and public servants. And the good news is that even the most determined, inventive and organised of would-be despots would struggle to overcome them.”
One would like to believe that the same holds true for South Africa.
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