A triumphant year for the judiciary

The man who casts himself proudly as “100% Zulu boy” is set for a victory worthy of the Zulu hero, King Shaka. This weekend President Jacob Zuma will vanquish all at the African National Congress’ leadership contest, with his formidable impi.

The size of the KwaZulu-Natal of delegation to Mangaung should easily ensure that the ANC will contest the 2014 elections with Zuma at its head. His surviving a full term is another story. Unless Zuma now suddenly starts to lead effectively, events may well deal him the same humiliation as it did to his predecessor, former president Thabo Mbeki — an internal coup d’état.

As the Marikana massacre signalled, the mix of deprivation and frustration can quickly turn explosive. South Africa is not, however, a powder keg waiting to detonate. The Constitution, despised by some in the ANC as thwarting the popular will, has ironically benefited the party in that it has diverted populist anger at ANC failures into peaceful solutions.

Given SA’s weak parliamentary checks and balances, compounded by a governing party imbued with the arrogance that accompanies unassailable majorities, the judiciary is a powerful ally of those unfairly treated. In that regard, 2012 should go down in history as the Year of the Constitution.

Following the success of the Treatment Action Campaign in forcing an Mbeki volte-face on HIV/Aids, many activists turned their legal skills to other areas of state failure. They shaped the blunt instrument of the law into a precisely balanced scalpel and, especially over this past year, an array of organisations have put it to fine use excising cankers of corruption, trimming arrogant officialdom, and puncturing odorous pockets of indolence.

Section 27 — named after the section of the Constitution that determines socio-economic rights — won a high court victory that for the first time had public servants scrambling to implement Education 101: providing kids with textbooks. The court found that the failure of the basic education department to do so in many Limpopo schools was a violation of the Constitution.

School education, on which more is spent proportionately than anywhere else, to achieve the worst competency ratings anywhere, hasn’t been the same since. Although many schools nevertheless did not get their textbooks timeously and the minister miraculously escaped dismissal despite the corruption exposed as being behind the non-delivery, a ministry that for the first time has been held accountable is beginning to get its act together.

Since then Equal Education and the Legal Resources Centre have launched another landmark case to ensure minimum standards in school infrastructure. Section 27 and the LRC also backed the basic education ministry against the wall with a third action challenging its failure to fill vacant teaching posts.

These NGOs have made the courts a powerful component in achieving popular agendas. By restraining state authoritarianism and forcing state accountability this makes for more democracy, not less as is argued by the anti-constitutionalists in the ANC.

Aside from socio-economic delivery, the judiciary played a key role in human rights and accountability issues. The Constitutional Court ruled tellingly against political partisanship when it set aside the “irrational” appointment of a head of the National Prosecuting Agency and when the Supreme Court of Appeal ruled that the NPA had to produce the record justifying its 2009 decision to suspend criminal charges against Zuma.

There can also be no doubt that the threat of constitutional appeal has a restraining effect on government and its agencies.

Public Protector Thuli Madonsela, a particularly troublesome thorn in the flesh of officialdom, would long been dismissed on some pretext, were her office and position not constitutionally protected. And the reason why the Secrecy Bill and the Traditional Courts Bill have taken so long to wend their way through Parliament and have been extensively watered down, is a belated ANC attempt to make them immune to constitutional challenge.

It’s been a triumphant year for the judiciary. Given ANC attacks on the Constitution and the erosion of judicial independence inherent to the Legal Practice Bill, may it not be the last such.