In last week’s edition of the Mail & Guardian, Drew Forrest raised the important question of the relationship of the Constitutional Court to the executive and legislative branches of the government. To date the government has behaved commendably when it has been reversed. Only last week Minster of Justice and Constitutional Development Penuell Maduna was reported as praising the Constitutional Court’s judgement in the Treatment Action Campaign (TAC) case.
It is highly unlikely for the serious voices in the government to raise much of a storm in the event that the United Democratic Movement’s challenge to the crossing-of-the-floor legislation is successful. Not even the most myopic supporters of the government can translate help for the temporary survival of Marthinus van Schalkwyk into a programme of transformation! The stakes are not that large in this latest challenge.
Hence the last point of Forrest’s article, which invites examination of the future of the court, becomes the critical issue. Much is spoken of the potential for the collapse of the judicial system as has occurred in Zimbabwe. Sadly, the courts of that land, which under two former chief justices were judicial institutions of great skill and integrity, have been swept aside in the torrent of madness that President Robert Mugabe has unleashed upon his nation. So why not here?
There are important differences between the two situations. Firstly, Zimbabwe never enjoyed the kind of entrenched Constitution with a Bill of Rights as is the case in this country. Secondly, South Africa is busily building the kind of institutional practice in which the important role of the courts is recognised by both the government and civil society.
The TAC campaign showed how powerful the combination of civil society activity and an independent court, interpreting a social democratic Constitution, can be in the development of a constitutional society.
That is not to conclude that the threat of a reversal towards the Zimbabwe scenario is not possible. The potential for serious conflict lies in the extent to which the present Thabo Mbeki government is determined to press ahead with certain political agendas that may well give rise to constitutional challenge.
Three contemporary issues illustrate the point. The TAC victory notwithstanding, the minister of health has still to show her commitment to the principles of the judgement. If the Medical Research Council supports the government’s approach to nevirapine, it may well be that the court is required to hear another Aids case.
The government’s proposed broadcasting Bill, which could muzzle the SABC in the style of PW Botha, may also face a freedom of expression challenge; after all, the purpose of curbing the editorial independence of the SABC, Thami Mazwai’s conception of news notwithstanding, is not to promote freedom of expression in a broadcaster funded by the taxpayer.
Depending on the outcome of negotiations concerning the Mining Charter, the proposal to ensure that a sizeable chunk of the mines is held by black shareholders could well land before the Constitutional Court.
These kind of challenges will raise the stakes. While the structure of the Constitution invites the court to balance rights against the policy decisions of a democratically elected government, the development of a coherent theory of deference that is both understandable and acceptable to the citizen and the government alike is not all that easily achieved. The recent differences between members of the Constitutional Court in the Prince and Bel Porto cases, about the threshold that the government must negotiate if it is to justify legislation that make inroads into entrenched rights, is illustrative.
There are two principles that may be usefully employed in predicting the future. The first concerns the government’s commitment to being a player in the global world. So long as the government continues to embrace the global concept (as opposed to the Washington consensus, which is something different), the institution of an independent judiciary is probably safe. The second principle, which may well conflict with the first in part, is that where the government faces court challenges to set aside important parts of its social and economic policy and loses in court, the danger signals begin to brighten. In reality here lies the danger; a government committed to conservative economic policy and the empowerment of a black bourgeoisie being fettered by a Constitution that has a competing social democratic vision. Here lies the potential danger for the courts. The present litigation is in truth but an insignificant curtain-raiser.