Zuma-Concourt saga: Constitutionalism (Episode IV)

The widespread use of the phrase “a victory of democracy”, when referring to the Constitutional Court Nkandla ruling, is a disservice to South Africa. Words have the power to shine light on a meaning. Words have the power to marginalise. The choice of the word democracy in this instance is not a trivial matter because it betrays a failure, of many, to grasp how our state is constituted and thus how it should function. This betrayal is no more pressing an issue than as is exhibited in the behaviour of the ANC caucus in parliament.

Let us first ground our analysis in historical events. On March 20 1952 the appellate court struck down a law ratified by the SA Parliament. The government of prime minister DF Malan refused to accept this; saying the courts had no business in such politically sensitive affairs. South Africa had a proper constitutional crisis.

In 1909, the British parliament passed an act called the South Africa Act. This was the founding act of the Union of South Africa. This act served as a proxy for a constitution. This document constituted South Africa as a democracy. By democracy it is meant that representatives for the people were to be chosen by the people (with the people having various limitations throughout our history). These representatives effected their preferences, national laws and governance procedures through the will of majority action, in parliament. The Act also mandated two-thirds majority threshold for changing certain of its clauses – these were called entrenched clauses.

From 1910 to 1950, the majority in parliament could make whatever abhorrent laws they desired, so long as the laws did not violate the South Africa Act (remember it was SA’s proxy constitution). Therefore, if a law violated the Act you could take it under judicial review. The highest court for judicial review, domestically, was the supreme court. However judicial review could also be taken to England, at the Privy Council (which essentially was the apex court of SA). The Privy Council was an option because we were a British colony.

In 1950, the Nationalist Party (NP) abolished the Privy Council option by taking advantage of the 1933 Westminster Statute in England. This statute made it possible for colonies to unsubscribe from having their laws subject to judicial review in England. The domestic supreme court judicial review path, however, still existed. It was precisely this path that culminated in the aforementioned constitutional crisis in 1952.

The South Africa Act had listed coloured people as eligible voters. The NP sought to have them removed for political reasons. But the right to vote for coloureds was an entrenched clause in the Act (remember these clauses required two-thirds majority to change them). The NP did not have a two-thirds majority in parliament. The NP, however, was possessed by a spirit, and proceeded to vote changes to this clause without a two-thirds majority. Parliament ratified the law.

Coloured respondents took the law under judicial review, on constitutional grounds. On March 20 1952 the appellate division of the court declared the law invalid. The government of DF Malan felt aggrieved that its majority was overruled by the courts. More so given that this was then a politically pregnant issue. The government sought legal advice and subsequently dug in its heels. Critics complained that if blacks in the Defiance campaign refused to honour the law because it was unjust, then does that mean that the NP refuses to honour the law because it is legal.

Undeterred, the NP used its majority in parliament to appoint a committee of MPs to review the appellate court decision. This parliamentary committee overruled the appellate court and re-instated the law. The supreme court then declared the committee unconstitutional (and so too its findings). The government of DF Malan acquiesced to the supreme court. Fast forward to 1955.

In 1955, prime minister JG Strijdom changed the electoral system in order to grant the NP its two-thirds majority. South Africa effectively became a parliamentary sovereign. Thus the NP’s two-thirds ensured its majority could not be taken under judicial review. Coloured voters were summarily struck off the common voters roll.

A parliamentary sovereign means that whatever the majority in parliament decides is what is right. Our history tells us that the majority-centric nature of a parliamentary sovereignty has nothing to moderate it but the whims of the majority. This changed in 1996, fundamentally so.

In 1996 (for accuracy we could say from 1993 when the interim constitution was adopted), the nature of our democracy changed fundamentally. South Africa became a constitutional sovereign. This means that laws ratified in parliament have to meet a standard of a higher authority, that being the Constitution (and its accompanying Bill of Rights). Thus what happened in 1996 is that the Constitution set a floor, below which, our laws and processes should not descend. In other words what the majority decided, became subject to a constitutional standard — you can’t just sommer decide nonsense.

Another way to understand this development is to look at the word constitute. The word means to create something. The Constitution, constitutes the state of South Africa. This means that the Constitution creates our institutions, state machinery and general governance framework.

This is why what happened at the Concourt on Nkandla is not a victory for democracy but a victory for constitutionalism.

The ANC caucus would be well-advised to note that the Nationalist Party government once walked this majoritarian path that the ANC is on. The more people say this is a victory for democracy, the more we feed this wrong belief that winning elections is a “licence to self-help”. We are a constitutional sovereign. The Constitution is supreme law.