The legal fraternity has come together to analyse the validity of the new Constitution. Mungo Soggot reports
ON the second floor of a new office block at No 33 Hoof Street in Braamfontein four big video screens are watched by a clutch of dedicated smokers. Inside the smokeless but stuffy room next door the closed- circuit cameras play over the pensive faces of 11 wigless judges in gowns of cream-soda green.
It is an unexceptional setting for a moment of high drama in legal and political history as the Constitutional Court this week became a political battlefield on which some of the country’s most eminent lawyers fought to shape the new South Africa.
The court has set aside two weeks to hear whether the final constitution honours the fundamental principles of the interim constitution, thrashed out during the epic Kempton Park negotiations.
Lawyers acting for both politicians and various interest groups are arguing it is not and that the judges cannot approve the final constitution. The certification process — the first in South Africa’s legal history — is designed to guarantee that no political party, particularly minority ones, lost out during the political bartering over the final Constitution.
Hanging over the judges is the realisation that even if they throw out just one clause, the entire constitution has to go back to the Constitutional Assembly where political parties will be able to claw at any clause they fancy.
Shortly after the hearing began, deputy constitutional court president Ismail Mahomed told Jeremy Gauntlett, counsel for the Democratic Party, that even if the court sent back just one provision to the Constitutional Assembly, politicians could reconsider other clauses in the light of what he, Gauntlett, or any of the judges had said. “That is too much to hope for,” quipped Gauntlett.
The first attack, which lasted two-and-half days, was launched by the DP, the Inkatha Freedom Party and the National Party against the new Constitution’s handling of the powers given to the provinces — an issue of crucial significance to political parties whose power is concentrated in particular provinces.
On the other side were the lawyers representing the Constitutional Assembly, George Bizos and Wim Trengove, advocates of a unitary state. They will be defending all the challenges to the final text.
The political battle was masked by what was mostly an abstruse analysis of the language of the interim Constitution compared with the final text.
Gauntlett lead the charge against the sections of the new constitution which deal with the provision of powers to the provinces. He argued the new Constitution gave the provinces substantially less legislative, executive, financial and fiscal power than the interim Constitution provided.
Gauntlett opened by reminding the court that although his client, the DP, had some gripes it was aware the new Constitution was “yet another miracle of the new South Africa”.
He was followed by the IFP’s senior counsel Peter Hodes who said the final text robbed the provinces of a host of powers, including their ability to organise their own police force.
The tension between politics and law was apparent from the start. Several of the judges expressed concern that the certification process could encourage them to trespass on the territory of the politicians.
“Are we not called upon to make political judgment on what the provincial powers should be … my main problem is how do we approach what are fundamentally political questions?” asked constitutional court president Arthur Chaskalson.
“Leave it to the politicians,” Bizos shrugged; to which deputy constitutional court president Ismail Mahomed interjected: “No. That’s why we are here.”
Bizos and Mahomed eventually agreed — the court should defer to political choice in the final text, which was made in line with the fundamental principles of the interim constitution. Mahomed translated this into a metaphor which popped up again during the three-day argument over provincial powers. “The constitutional principles are the lights of the runway through which you can fly your plane.”
Wrapping up the case for the Constitutional Assembly, Bizos said the description of the fundamental principles as a “solemn pact” had featured several times during the three day hearing as the court was told of the glories of provincial autonomy. “But every solemn pact has at least two sides.
`It is significant that nothing has been said about the principles which recognise the need to promote national unity and legitimate provincial powers. After all, majorities also have certain rights.”
Trengove said that far from the provinces getting a raw deal from the new constitution, they in fact came out with more power with the establishment of the Council of Provinces. In particular, the new Constitution gave far more effective collective power to the provinces at the national level. He said the new text proposed a greater culture of “intergovernmental comity”.
He played with Gauntlett’s conclusion that the text “forced the lamb to lie down with the lion”, saying: “The benefits to the lion are debatable, but to the lamb are obvious.”
During the hearing, several of the political midwives who delivered the Constitution — Roelf Meyer, Valli Moosa and Cyril Ramaphosa — flitted through the courtroom. The IFP’s constitutional fighters, Walter Felgate and Home Affairs special advisor Mario Ambrosini (ardent advocates of provincial powers), were also there — a niggling reminder for the judges of what Judge Laurie Ackermann termed their “unique task”.
But the political temperature dropped when the African Christian Democratic Party took the stage to argue that the final text discriminates against Christianity. Sapa reported the party’s KwaZulu- Natal chairman Kurt Worrall-Clare objected that the Constitution was the supreme law of the land and not biblical law. The ACDP had wanted the words “In humble submission to Almighty God” included in the preamble to the final Constitution, he said.