Litmus test for a young democracy
Adriaan Basson and Charl du Plessis
‘People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced.”
Former Chief Justice Arthur Chaskalson recently used this quote by Australian jurist Murray Gleeson to explain the inevitable tension between judges and politicians in a constitutional dispensation like ours.
This week’s announcement of the details of a Constitutional Court review is a litmus test for South Africa’s young democracy.
The court – the establishment of which was passionately driven by the ANC during the Codesa negotiations for a new South Africa – has been at the forefront of promoting basic human and socioeconomic rights since its establishment in 1995.
But in the past four years, it has come under pressure from a governing party that has accused it of being “counter-revolutionary” and in effect running government from Braamfontein.
It all started with the Treatment Action Campaign case in 2002, says former Constitutional Court Judge Johann Kriegler.
It was the first time the court had told government what to do. It ordered then Health Minister Manto Tshabalala-Msimang to provide ARVs to pregnant woman who are HIV-positive.
The court has always been careful not to jump the Chinese walls between South Africa’s three pillars of state.
But Chaskalson said in a recent address to the University of Cape Town if policy in a democracy was not consistent with the Constitution, “it is the duty of the court to say so and declare it to be invalid to the extent of its inconsistency”.
South Africa’s first Chief Justice, Ismail Mahomed, said that “a democratic legislature does not have the option to ignore, defy or subvert the court”.
“Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court in any conflict generated by an enactment challenged on constitutional grounds.”
The Constitutional Court’s powers have been questioned by ANC Secretary-General Gwede Mantashe, Deputy Correctional Services Minister Ngoako Ramatlhodi, Higher Education Minister Blade Nzimande and, most recently, by President Jacob Zuma.
Many of these attacks have talked about a lack of transformation in the judiciary, but Chaskalson has pointed out that about 60% (134) of our judges are now black.
In 1994 there were three black judges.
Zuma has himself had at least six run-ins with the court. Every time he has lost.
Zuma’s relationship with former financial adviser Schabir Shaik, convicted for corruption in 2005, saw him end up in the Constitutional Court in his personal capacity several times.
Zuma failed to show that his right to a fair trial, dignity or privacy had been impeded by the granting of search and seizure warrants, and a letter from the Scorpions requesting alleged incriminating evidence from Mauritius.
In his official capacity as president, Zuma was party to the Constitutional Court ruling declaring the disbandment of the Scorpions unconstitutional.
This was because the unit that replaced them, the Hawks, was found not to be sufficiently independent of political structures.
Zuma’s ill-fated attempt to extend the term of office of former Chief Justice Sandile Ngcobo also failed and his “irrational” appointment of Menzi Simelane as prosecutions boss is heading for the court this year.
Mantashe launched a blistering attack on the court in 2008, accusing the judges of being “counter-revolutionary” forces who sought to destroy Zuma and the ANC.
Another critic of the court, on vastly different grounds, is constitutional law expert Jackie Dugard.
She has pointed out in different papers that the court has failed on two grounds: to lobby for legal representation for the poor in civil matters, and to provide direct access to the court for those with big problems but empty pockets.
She has suggested that South Africa look towards the Costa Rican model, which accepts any direct claim in written form and considers about 17 000 cases each year.
“The Constitutional Court risked becoming an elite institution, increasingly inaccessible to the poor,” Dugard argues.
It’s now up to Justice Minister Jeff Radebe and his team of reviewers to say what they really mean when they talk up a “transformed” court.
One that provides greater access to more South Africans, or one that takes us back to the dark old days when the top court merely carried out the bidding of its parliamentary overlords.