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What’s It To Be: Constitutionalism Or Populist Revolution? (Cont.)

It is an unavoidable part of the deal, as fashioned between the representatives of all the people, that the Constitution means, in the final analysis, what our independent judiciary interprets it to mean. Other organs of state are required to assist and protect the Courts as they are the most vulnerable and least powerful of the three spheres of government. Courts command no armies, are not popularly elected and do not necessarily do the bidding of the masses in their functioning. They are beholden only to the law and the Constitution. It is part of the deal that their final decisions, after all appeals are exhausted, will bind all persons to whom and all organs of state to which they apply. This is what the Constitution itself expressly requires. [Section 165]

It is so that judges are human, and being human, can err. However, the system of appeals and reviews in place, the availability of both a Supreme Court of Appeal and the Constitutional Court (in constitutional matters) to second, or even third, guess the decisions of the lower courts make the prospects of error occurring somewhat remote. The Constitutional Court does not usually sit as a court of first instance, preferring to weigh the reasoning of other courts before coming to its own decision. It also sits en banc; this means that at least 8 judges in that Court must sit together and deliberate upon any issue properly placed before them.[Section 167] In this structure the chances of an error occurring are extremely limited. When, on those rare occasions, errors occur it is incumbent upon those bound by the final decision reached to abide by it. The alternative is a descent into anarchy that will jeopardize or even cancel the democratic gains of the last 15 years.

Part of the rationale for eliminating a sovereign parliament from our system of government is that the law and the Constitution are regarded as a better source of all that is right and just in our society than the mere will of the majority of those elected to represent the people from time to time. We accordingly included a justiciable Bill of Rights in our Constitution.[Chapter 2] It requires that the state respect, protect, promote and fulfill the rights guaranteed to all in it. Furthermore, it is a foundational principle of our legal dispensation that all conduct and any law inconsistent with the Constitution is invalid and liable to be struck down as such by the Courts.[Section 2] This constraint upon the powers of the executive and the legislature is salutary and necessary. It means that those in positions of influence and authority have to be forever vigilant that the plans they make, decisions they take and things they do, or omit to do, are constitutionally compliant. In this way the injustices of the past can be systematically eliminated and the “better life” the Constitution promises can be realized. The whole constitutional project was started to reflect “the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. [Section 198]

The alliance of political formations that has had stewardship of the government of the country since 1994 has long cherished ideas of transforming the judiciary, first to make it responsive to the “aspirations of the masses” later changed to the “aspirations of the people” after it was pointed out that not everyone is part of the masses. This desire to transform the judiciary is a part of the national democratic revolution which is the motive force behind the ANC, the dominant element in the alliance that serves the nation as its government of the day. While some members of the ANC regard the tenets of the national democratic revolution as outdated rhetoric of the past, the rhetoric is so oft repeated that the new ANC leadership insisted upon the passage of resolutions at Polokwane underpinning it. This suggests that it may be premature to dismiss the attachment to the revolutionary ideals as mere rhetoric. The December 2007 Polokwane conference adopted a resolution requiring “all senior deployed cadres in various centres of power” [this would include the public service, security services and para-statals] “to go through political classes to understand the vision, programme and ethos of the movement.” The fact that the courts have held that cadre deployment in the public service is illegal does not prompt any rethink. The incoming National Executive Committee (NEC) of the ANC was instructed “to give strategic leadership to cadres deployed in the state and to improve capacity to hold cadres deployed accountable.” A central notion of the national democratic revolution is that safe party hands should find their way onto all of the so-called “levers of power” in society.

This hegemonic vision is deeply incompatible with the ideals of multi-party democracy incorporated into the Constitution. When Jacob Zuma calls for his “three-thirds majority” he is being true to the idea of a one party state in which all power is in the hands of his party. The checks and balances of constitutionalism, its insistence on the separation of powers and the legitimate maintenance of the rule of law all get swept aside in the pursuit of this hegemony. The free press, an independent judiciary and the judicature are invariably the first casualties of such a process. Already the demise of the Scorpions spells the demise of the independence of the prosecuting authority. This is evidenced by its limp and ill-considered decision to withdraw charges against the self-same Zuma. His call to review the status of the Constitutional Court, made immediately after the withdrawal of the charges against him, demonstrate his complete lack of fealty to the constitutional order which was agreed upon in 1994.

Writing well before the Polokwane conference was held, Thabo Mbeki’s biographer, Mark Gevisser, warned that: “Mbeki allegedly worried that Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation the ANC had put into place if they came to power.” It is now time for all who value living in a constitutional democracy of the kind envisaged in our Constitution to join in that worry. A one party state in which the unbridled populism of the pursuit of the national democratic revolution is the order of the day is a far cry from any dispensation in which the Constitution is the supreme law. If Zuma is intent upon revolution he should say so unambiguously and stop paying lip service to the values and supremacy of the Constitution both of which are impediments to that revolution. He surely owes it to the people of South Africa.

Paul Hoffman SC
13 April, 2009

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