Constitutional dance makes way for a populist jig

This column has argued previously that constitutionalism depends upon the existence of a broad societal consensus on key values and norms. The future of the constitutional project also depends on cooperation rather than confrontation between the government and the courts.

Presciently, David Dyzenhaus, a renowned legal philosopher, warned last year in the pages of the South African Law Journal that it was no longer clear whether the government was prepared to continue this cooperative dance.

Developments during the past six months have confirmed the need for his warning. The government’s foreign affairs policy, not only on Zimbabwe but also on other dictatorships like Burma, reveals that foreign policy and the Constitution are distant relatives who have not met for half a decade.

The xenophobia that engulfed the country in the past two months confirmed so passionate a hatred of the “African stranger” that it made a mockery of our commitment to respect for the dignity of all who reside in this country. Julius Malema and Zwelinzima Vavi insist that their supporters would kill for Jacob Zuma. ANC secretary general Gwede Mantashe goes on to call the Constitutional Court “counter-revolutionary”.

Whatever hermeneutic spin is placed upon these comments, the purport was clear: counter-revolutionaries wish to undermine the “revolution”.

Then there’s Judge John Hlophe. The Constitutional Court filed a complaint that goes to the heart of the administration of justice. A number of prominent lawyers complain about the publication of the complaint but say nothing about the fatal danger to the rule of law if the complaint is proved.

The deputy president of the ANC muses in public about the targeting of judges committed to transformation, thereby implying that there is some substance to the allegation of a Constitutional Court conspiracy against Hlophe. Mantashe roars in public about the counter-revolutionaries in the Constitutional Court.

So now we know what the fight against counter-revolution might entail, at least for the courts: the judges of the Constitutional Court must eschew a fidelity to the law and instead ensure the promotion of the cult of personality. To date Jacob Zuma has not denied unequivocally that no mandate, express or implied, would ever be given by him or his advisers to any person, including Hlophe, to seek to influence a court in the manner alleged.

Meanwhile, the litigation by businessman Hugh Glenister against the termination of the Scorpions revealed, from the government’s own answering papers, that there was hardly a rational reason to destroy an effective crime-fighting agency rather than simply effecting improvements to the unit to ensure its greater accountability. As it stands, only those who engage in corruption will benefit from this decision.

All these developments support the idea that the constitutional dance is over and that a populist version is about to take over. ANC and Cosatu statements suggest that constitutional democracy may not be sacrosanct.

How have we arrived at a situation where the constitutional discourse of our leading judges, Pius Langa and Dikgang Moseneke, who have devoted their lives to the transformation of our society, gives way to the opportunistic populism of legal commentators who, in many cases, made no or a minimal contribution to the struggle for our democracy?

If this tendency continues, supported by adherence to a cult of personality, a disregard for institutions that can hold power accountable and curb corruption, then the constitutional dance will be over for good.

The values for a truly democratic country as set out initially in the Freedom Charter will then be honoured only as a historical curiosity. Make no mistake—we are in serious danger of ruining the possibility of continued struggle for the attainment of a transformed democracy by adherence to the demands of short-term political ambitions.

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