The past few months have taught us a depressing lesson about the long and uncertain journey required by constitutional democracy. Foundational principles of accountability, transparency and the independent operation of institutions through which constitutional democracy is mediated, including the judiciary, are all under great pressure.
Last year the Judicial Service Commission, mandated to deal with the appointment and supervision of the judiciary, decided by majority vote to end an inquiry into the conduct of the Cape Judge President, John Hlophe.
The decision split the legal profession on race lines; the detailed reasons underpinning it were never made public; and the profession was unable or unwilling to debate the matter.
So much for adherence to the principles of accountability and transparency. A decision affecting the public interest was never explained and no proper debate about judicial accountability could take place.
Then came the Jacob Zuma matter. Once Zuma was charged, the public was informed by leading political players of the dire consequences if the case went to court. At the same time, the tried and tested complaint that the judiciary was untransformed again reared its head.
As the present composition of the judiciary indicates, however, a decisive move toward a demographically representative judiciary, at least in terms of race, if not of gender, has taken place in recent years. For example, with the impending retirement of Judge Craig Howie as president of the Supreme Court of Appeal, all of the heads of court will be black judges.
The real motivation for the carping about transformation became clear with the ANC’s public attack on the Deputy Chief Justice, Dikgang Moseneke. Unlike some of those who have become popular heroes of late, Moseneke was intimately involved in the struggle for democracy. He was the youngest political prisoner in the country, and then a key figure in the Pan Africanist Congress. He has since authored some crucial judgements that contain impressive transformative jurisprudence.
But none of this saved him from a savage public attack based on an obvious misconstruction of comments he had made. At the very least, one would have expected his critics to make some attempt to clarify the meaning of his remarks before attacking him.
That the spat was patched up is beside the point. A venomous attack on so distinguished a judge may well serve its purpose: the chilling of judicial independence.
Next came the announcement that the Scorpions are to be disbanded by mid-year. The only plausible explanations for this move appears to be either that the Scorpions are unaccountable or that a blurring of investigative and prosecutorial functions is undesirable.
But this is an agency with an almost a 90% success rate in prosecuting corruption. The acting director of the National Prosecuting Authority believes the eradication of the Scorpions will weaken the fight against graft, and no one has seriously advanced the argument that the move will strengthen it or improve the accountability of public officials.
At the very least the perception exists that the only people who will benefit from the absence of the Scorpions will be the corrupt and those who wish to operate unfettered by accountability to the electorate.
Last week no Cabinet minister was prepared to resign over the disaster in electricity policy. The country’s economic growth and the jobs of the most vulnerable have been seriously jeopardised, but no one responsible for the chaos was prepared to step forward and accept that his or her misconduct has placed the nation in danger.
Taken together, these events are cause for the gravest concern. They point to an attack on key institutions and a cavalier disregard for the principles which are the very pillars of our constitutional enterprise.
The journey is unlikely to be smoother this year. The prospect of the Zuma trial, the scrapping of the Scorpions and the return of the police to bungle corruption investigations, and new legislation to further reshape the judiciary all hold disturbing constitutional implications.
The warning signs are flashing: will we, the people of South Africa, passively accept the end of the promise of constitutional democracy?
It may be trite to say it, but a country ultimately gets the institutions it deserves. Surely the majority of South Africans will not allow the journey towards the society our Constitution envisages to be halted because certain politicians want to exercise power in an absolute and unfettered fashion.