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South Africa’s National Prosecuting Authority (NPA) appeared to be in a “chaotic” situation, which could prevent it from carrying out its constitutional obligation to the country’s citizens, Justice Edwin Cameron has said.
In response to questions at the end of his public lecture on 20 years of constitutional rule in South Africa at the University of KwaZulu-Natal law school in Durban today, Cameron said the Constitution required that the “confusion” around the status of its head, Advocate Mxolisi Nxasana, needed to be addressed urgently.
“Things look chaotic from outside,” Cameron said, adding that the lack of clarity around Nxasana’s status and the “chaos” in the NPA created an impression of “chaos and dysfunction”, which inhibited the prosecuting authority’s ability to meet its constitutional mandate.
In response to an earlier question regarding President Jacob Zuma’s attempts to delay the release of the spy tapes, which had caused the recall of his predecessor, Thabo Mbeki, Cameron said Zuma had every right to challenge – thus slowing down – the process.
This right to use the law was one that belonged to every citizen and to restrict the president’s rights would be to restrict those of all, he said.
In his lecture, the Constitutional Court judge said under apartheid, lawyers and activists had used the law to undermine the decisions taken by the regime and to slow down its implementation of oppressive edicts by taking them to court.
Similarly, the trade union movement had used legislative changes of the late 1970s to force its legalisation and recognition, while social and legal activists had successfully forced the apartheid state to drop the pass laws and other oppressive laws.
This idea of the law being a means of enforcing social justice had been enshrined in the post-apartheid Constitution, which, with its Chapter 9 institutions, was the “most open-spirited, most ambitious’’ Constitution in the world.
The Treatment Action Campaign had similarly used the Constitution when it defeated the “catastrophic denialism” on HIV and Aids of Mbeki, forcing his government to roll out ARVs despite the head of state’s refusal to accept that HIV had caused Aids, Cameron said.
Cameron, who publicly declared his status as an HIV- positive homosexual man as part of the campaign to force the state’s hand, said this kind of activism by civil society, lawyers and an “alert” citizenry was essential to ensure that the state delivered on its obligations.
Cameron said while there were concerns about the rule of law being undermined by the state, the separation of powers was “real” and South Africa had the political will to avoid a slide towards becoming a failed state.
