The AIAC Podcast — "Just Us Voting"

Date: May 28, 2024

Host: Will Shoki

Guests: Dan Mafora, Elisha Konene, Tanvir Jiwa

Overview

This episode of The AIAC Podcast (cross-posting the “Just Us Under a Tree” podcast) dives deep into South Africa’s fast-approaching 2024 general election, recent litigation concerning former President Jacob Zuma’s eligibility to run for office, and the broader questions about law, legitimacy, and justice in South Africa and beyond. The hosts — Dan Mafora, Elisha Konene, and Tanvir Jiwa — also touch on recent International Court of Justice (ICJ) and International Criminal Court (ICC) developments regarding Israel/Palestine, weaving legal analysis with political insight and a familiar, bantering tone.

Key Discussion Points & Insights

1. Podcast and Context (00:17 – 04:47)

• Podcast Update: The hosts joke about their sporadic publishing schedule and their intentions to record more regularly in the future.
• Who’s Who: Quick intro: Tanvir (constitutional/property law lecturer), Dan (Cape Town lawyer, author of Capture in the Court), Elisha (law/politics lecturer, Cape Town).
• Context: It’s late May, three days before the national election, so the episode aims to dissect timely legal questions at high stakes for South Africa.

2. International Law, the Israel-Palestine Case, and South Africa at the ICJ (04:47 – 28:00)

Recent Developments

• South Africa’s Success: South Africa succeeded in getting the ICJ to amend orders against Israel under the Genocide Convention, requiring a ceasefire (specifically in Rafah).
• International Outrage and ICC: ICC prosecutor issued arrest warrants for Netanyahu and Hamas’s leader. South African authorities, notably Dr. Naledi Pandor, have been proactive in pushing both the ICC and the ICJ for accountability.
• Global Reactions: The West’s response to ICC warrants reveals “the entire premise of international law as a cover for who has nukes and who doesn’t.” (18:49)

Critical Law & Commentary

• On ICJ’s Orders: Discussion centers around the ambiguity and limits of the ceasefire orders — whether they require Israel to stop all military operations in Rafah or only those that violate the Genocide Convention.
  • “It’s like asking the genocide-committer to judge whether the act that you’re doing is genocide and then stop yourself.” — Tanvir (21:20)
• Discretion, Power, and International Law’s Failures: The court’s ambiguity leaves “all discretion in the hands of Israel,” severely undermining international law’s effectiveness. (14:55)
• Racialization and Double Standards: The panel highlights the racialized calculus of “at what number does it qualify as a genocide,” and how Global North vs. South affects such thresholds. (24:46)
• Universities and the Fall of Knowledge: Universities and schools in Gaza being obliterated creates not just human catastrophe, but “epistemicide.” Calls for solidarity and action in South Africa’s universities.

Notable Quote

• “International law is just the cover for: I have nukes and you don’t. If you don’t comply, I can just bomb you.” — Dan (18:49)

3. South African Election 2024 and the Zuma Eligibility Saga (28:00 – 50:34)

Political Landscape

• Historic Election: The possibility of the ANC losing its majority raises fears and speculation about coalition governments. The MK (uMkhonto we Sizwe) Party, newly appropriated by Zuma, is seen as siphoning votes from the ANC due to its liberation heritage.
• Jacob Zuma’s Return: Despite being disqualified from running, Zuma’s face is prominently displayed on MK campaign materials — calling into question misleading voter advertising.
  • “You might say many things about Zuma, but if there’s one thing, he’s very charismatic to many voters…he remains relatable to some parts of the populace.” — Tanvir (36:46)

Legal Frameworks and Chaos

• The Section 47(1)(e) Debate: South Africa’s Constitution disqualifies candidates sentenced to more than 12 months’ imprisonment (without a fine option). Zuma was convicted for contempt and sentenced, but president later remitted his sentence. Did the remission reduce the original sentence, or simply allow early release?
• Litigation Timeline: Zuma and MK contest IEC’s disqualification; Electoral Court sides with Zuma (on shaky grounds — panel calls the legal reasoning “actively stupid” (50:34)), IEC appeals to the Constitutional Court (ConCourt).

Notable Moments

• “The IFP can also be accused of misleading advertising as the person they have on their posters is literally dead.” — Elisha (36:26)

4. Constitutional Court Judgment on Zuma (50:34 – 112:28)

Recusal Drama

• Apprehension of Bias: Zuma’s team seeks recusal of judges who previously ruled against him, arguing an “apprehension of bias.” Panel ridicules these arguments, likening them to demanding judges never sit on cases involving repeat litigants. (54:32–72:12)
  • “Contempt is in the name of contempt.” — Elisha (71:08)
  • “Advocate [Dali Mpofu] is so good, because it’s so hard to rule against him because it’s impossible to pin down what his argument is.” — Elisha (72:18)

Key Legal Questions

• Remission vs. Pardon: The legal discussion turns on whether presidential remission is equivalent to reducing a sentence or simply shortening time served. Consensus: remission does NOT erase the disqualification.
• On IEC Powers: Argued that if not the IEC, then “who” has authority to police eligibility? The alternative would nullify the electoral process’s legitimacy.
  • “If not the IEC, then who? What would the IEC exist for if it isn’t able to disqualify unqualified candidates?” — Elisha (83:53)
• Judgment’s Emphasis: The ConCourt, in a unanimous opinion (Justice Theron), holds:
  • A candidate convicted and sentenced as Zuma was is indeed barred by the Constitution.
  • The finality trigger for disqualification lies in appeal exhaustion; if no appeal is possible (as in a ConCourt sentence), the disqualification is immediate.
  • The power to enforce Section 47(1)(e) lies with the IEC, confirmed via Section 30 of the Electoral Act.
• Side Debates: Brief detour into originalism and the use of legislative history. Judges, even in a unanimous moment, sometimes signal their ongoing disagreement with precedent they are bound to apply.
  • “I stand by my descent in the contempt judgment … but I do respect and acknowledge the decision of the majority as the final word.” — Justice Theron (paraphrased, 96:51)

Notable Quotes

• “Even Justice Theron does believe in finality.” — Elisha (107:16)
• “You cannot just disrespect a court, be in contempt, and then go to Parliament. There has to be some form of consequence.” — Dan (111:06)
• “The court’s interpretation … is very solid. A very interesting decision at a time when the courts are in a difficult spot. This is the most contested election we have seen, at least in my lifetime.” — Dan (112:22)

5. Reflections — The Court’s Legitimacy and Zuma’s Endgame (112:28 – end)

Court’s Standing

• Panel View: The ConCourt judgment, especially as authored by Justice Theron (herself previously in the minority), is a strong, unassailable moment for South African constitutional law—both on the merits and for legitimacy.
  • “This case wasn’t a particularly difficult one and was handled quite well, jurisprudentially, by the Court.” — Elisha (115:44)
  • “I think there’s no question of the court’s legitimacy. The Chief Justice did well not to sit. I would hate for this to be the state of every election…” — Dan (120:28)
• On Zuma’s Political Play: While disqualified, Zuma likely leveraged this saga to continue undermining the court’s legitimacy among his base, regardless of the legal reality.

Politics vs. Law

• A New Era: The panel underscores that, for the first time, a political party is running against South Africa’s entire constitutional order — staking its platform on rejecting the Constitution itself.

Bittersweet Banter

• The episode closes with jokes about likely future litigation, including Zuma’s putative future appeals to the UN (“next episode, Zuma appealing the judgment to the United Nations…” (121:14)), and a reminder of the podcast’s irreverent, deeply engaged, and collaborative tone.

Notable Quotes — Quick Reference

• “International law is just the cover for: I have nukes and you don’t.” — Dan (18:49)
• “You might say many things about Zuma, but if there’s one thing, he’s very charismatic to many voters…he remains relatable to some parts of the populace.” — Tanvir (36:46)
• “The IFP can also be accused of misleading advertising as the person they have on their posters is literally dead.” — Elisha (36:26)
• “If not the IEC, then who? What would the IEC exist for if it isn’t able to disqualify unqualified candidates?” — Elisha (83:53)
• “I stand by my descent… but I respect and acknowledge the decision of the majority as the final word.” — Justice Theron (paraphrased, 96:51)
• “You cannot just disrespect a court, be in contempt, and then go to Parliament…” — Dan (111:06)

Timestamps for Major Segments

• Intro & Housekeeping: 00:17 – 04:47
• Israel/Palestine, ICJ/ICC legal geopolitics: 04:47 – 28:00
• South Africa’s 2024 Election Landscape & Zuma’s MK Gambit: 28:00 – 50:34
• Legal Deep Dive: Electoral Court → Constitutional Court, The Zuma Judgment: 50:34 – 112:28
• Reflections on Legitimacy, Future of the Court and MK Party’s Stance: 112:28 – end

Tone and Style

The episode maintains a witty, self-aware, collegial energy with deep legal rigor, political insight, and regular asides. The hosts take complex, often arcane constitutional issues and animate them with humor while never losing sight of their stakes for democracy and justice.

Conclusion

This episode is essential listening for anyone seeking to truly understand the convergence of law, politics, history, and continental/international dynamics shaping South Africa’s pivotal 2024 election. Through expert analysis and genuine camaraderie, the “Just Us Under a Tree” team lays bare the legal foundations — and fault lines — upon which the country’s future will pivot.