Courting disaster: Is there a con in Constitution?

No head of state, whether they’re a monarch, an elected president or the ruler of a party in office, can be happy seeing their decisions made null and void or the laws they pass overturned by some other authority.

In his 2010 State of the Union address, President Obama said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law.” He went on to pointedly criticise the court. Sitting only metres away in the second row, Justice Samuel Alito breached protocol by shaking his head and visibly mouthing, “Completely untrue.”

Obama, like all American presidents before him, may be vexed by the bench at times. But it is almost impossible to imagine him then calling for a review of the powers of the Supreme Court. (Unlike President Jacob Zuma who told The Star, “We don’t want to review the Constitutional Court, we want to review its powers.”) The US Supreme Court is sacrosanct, even when it has acted overtly politically as in Bush v Gore (a 5-4 split decision). Al Gore in his concession speech said: “While I strongly disagree with the court’s decision, I accept it.”

So no surpise then that whenever the opportunity arises, US presidents seek to stack the bench with liberal or conservative judges meant to approximate Republican or Democrat partiality. (In South Africa, the ANC stacks the Judicial Services Commission which selects judges.) Presidents are routinely pleased and disappointed by turns. Judges remain stubbornly unpredictable thanks to their independence.

Even under apartheid, when a morally corrupted judiciary saw their role as enforcing the autonomy of the legislature, there were judges who tried to restrict the arbitrary exercise of power.

It was precisely with this in mind that our Constitution was framed with checks and balances against tyranny; to prevent the capitulation of the judiciary to the political executive. The Concourt therefore is given the final say on whether the acts of the executive and the laws emanating from the legislature pass constitutional muster. This is what it means to live in and be protected by a constitutional democracy.

By sitting at the apex, the Concourt can act without fear or favour. Or so they thought.

In the wake of numerous rulings against executive decisions and constant legal challenges to ANC proposed legislation (such as the Secrecy Bill), the government clearly feels restricted. Nor does it help that the sitting president is implicated in corruption (sufficient for his predecessor to fire him as deputy president) and may find himself once again in court facing prosecution.

It is not necessary here to go into the veiled threats, mixed signals, ambiguous language and open displeasure voiced by the government with regards to our courts. It is well documented by legal commentators. (To obtain a fair insight into how government thinks about the judiciary in its own words, see the revealing interview Gwede Mantashe gave the editor of the Sowetan.)

Incoherent arguments voiced by the president and criticisms of court rulings by government spokespeople and the ANC Chief Whip, not only show a shocking ignorance of the law and its procedures, but reveal a crude view of the separation of powers. Our political masters often don’t seem to even have the basic facts straight.

Is the complaint then simply one of misunderstanding?

In the cases the government has lost (often by unanimous decision), instead of being “perplexed” it should rather reflect on the shoddiness of its ill-advised actions and on the character flaws and failings of its leadership. Of the three branches of government, the judiciary is actually the least drunk on power.

The only restraint the Concourt has ever put on government is that it honour the law as enshrined in our Constitution.

Yet the ruling party has openly allowed its supporters to smear the judiciary by claiming decisions are politically motivated and “suspicious”; by calling into questions rulings based on the skin colour of the judge; through dark murmurings that the courts are in “opposition” to the ANC; by alleging that we have an untransformed, unelected judiciary undermining the ANC’s majority mandate.

Casting aspersions on the motives and legitimacy of the courts is highly irresponsible; it is a game that has the potential to shake the nation at its foundations. But is there some truth in these claims?

The complaint is seldom specific (we await a discussion paper from government to be released on February 22) ; instead the tactic is to conflate the actions of the various courts and to talk about the “judiciary” and the “constitution” as a whole.

The Concourt is the guardian of the Constitution. Attacking the powers of the Concourt is to call into question the Constitution itself, something increasingly done for political reasons or to use Zuma’s euphemism out of “societal concern”, a concern manufactured by the ruling party (‘Why can’t we sing shoot the boer?’ ‘How can they call Robert McBride a murderer?’ ‘Why can’t Zuma appoint whom he likes?’ And, perhaps the case that hurt most given the arms deal probes and Zuma’s history: ‘Who says the Hawks aren’t independent enough?’).

Some now even claim the Constitution was part of an imperialist plot foisted on the country during the negotiated settlement. Nothing could be further from the truth.

(As an aside, I have wondered if Justice Lamont would have banned “that struggle song” had he not been on the bench of an Equality Court specifically mandated to rein in racial hatred, and had his courtroom not been invaded by Malema’s gun-toting thugs.)

Claims by the peanut gallery that the judiciary is untransformed lack merit. The chief justice and deputy, the president and deputy of the Supreme Court of Appeal, all judges president of the High Court are black; as are 8 of the 11 judges of the Constitutional Court; as are 60% of all judges. Few current judges ever held office under apartheid; the rest have all been appointed by ANC presidents.

Some in the ANC executive now allege that there is a con in our Constitution; that our Constitution is an impediment to socio-economic transformation for the majority; that it is being used by reactionary judges to uphold the status quo set by apartheid.

In what way can it be said that the Constitution is “protecting white economic interests” (in the words of one ANC minister)? Or capitalist ideology? Or that the Constitution was a con so that “elections would be regular rituals handing empty victories to the ruling party” (according to another senior ANC official)?

One specific complaint has been around the land issue. Cosatu president Sidumo Dlamini said, “In our view the land question cannot be effectively addressed without amending the constitution to deal with the property clause.”

Speaking on the Green Paper on Land Reform, Minister Gugile Nkwinti said, “We will ask cabinet to change the Constitution if we need to in order to achieve the objectives we want to achieve as a country.”

The opposite and better informed view was taken by SACP spokesperson Malesela Maleka in January: “The Constitution is not a liberal document but a radical one” and “the so-called property clause, expressly allows for expropriation on terms other than market-value.”

Former Chief Justice Arthur Chaskalson has pointed out that the Constitution in fact demands “positive action to confront the apartheid legacy of poverty and disempowerment” and “the achievement of equality is not only a guaranteed and justiciable right in our Bill of Rights but also a core and foundational value”.

According to the Constitution “public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”. In fact the Concourt urged the government to amend the old legislation from the apartheid era dealing with expropriation. The ANC did not.

If anything it is the Concourt that has come time and again to the rescue of the poor, the landless and the dispossessed against inequitable government policy and important to note against capitalists too. (See landmark cases.)

So what then is afoot? Some say the ANC want a return to parliamentary sovereignty. But parliament is so well sewn up by the ruling party, that it is actually a desire by Luthuli House to have unfettered executive power.

Why such a fundamental change in the ANC? After all the ANC played a leading role in the drafting of the Constitution, its spirit informed by their 1989 Harare declaration. It is because the ANC is seen to be failing on its promises. It is not failing because it is hamstrung by the Constitution mind you; it is failing largely on its own profligacy, corruption, inefficiency, its elite pacts, and ANC authored neo-liberal policies.

Increasingly frustrated, the liberation movement (like its predecessors) embarks on a process of revolutionary purification. It resurrects the rhetoric of “National Democratic Revolution”. A reason for failure must be found outside itself; scapegoats and conspiracies are sought: “White Inc”, civil society, a poisonous media, foreign agents, reactionary judges, the Constitution.

Unable to deliver an alternative society, it seeks absolute control of every lever of power – the legislature, the economy, justice system, intelligence services, public opinion, the fourth estate, the courts. Such unconstitutional efforts are inherently flawed and therefore doomed to failure. Each lever of power it subsumes it corrupts, pushing it ever further away from realising its revolutionary ideal.

If government genuinely wants to succeed in creating a new society, prosperous and equitable, it would do far better by making a real effort to implement the vision of the Constitution. The answer lies in more democracy, not in a consolidated autocratic state with unconstrained powers.

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