The following scenario never seems to change: as soon as political leaders fall out of power, they suddenly appreciate the benefits of the rule of law and, where applicable, constitutional democracy.
Perhaps Mbhazima Shilowa is different in that, as premier of Gauteng, he piloted a sensible Aids policy for the province and, notwithstanding his support for Thabo Mbeki, pursued policies of constitutional principle. But others who now have rallied to the defence of the Constitution were part of the team that included Manto Tshabalala-Msimang and her Aids policy.
In similar fashion the Mbeki era was characterised by a silencing of opponents, using the race card (charming terms such as “unreconstructed racist” and “coconut” became popular), the protection of a suspect police commissioner and, by way of a judicial finding, interference with the National Prosecuting Authority (NPA). The new defenders were then aggressors or passive collaborators.
These are hardly the credentials for a stout defence of the Constitution. Making an evaluation of the present position even more complex are the appointments by President Kgalema Motlanthe of Barbara Hogan and Enver Surty to the ministries of health and justice respectively, both of whom are precisely the dedicated politicians who will close the gap between socio-economic reality and the promise of the Constitution. Both represent the kind of appointment that was almost inconceivable under Mbeki.
So, whatever new party emerges, it cannot be described as being a case of heroic defenders of the Constitution versus an ANC government determined to destroy it. That is far too simplistic. A more detailed description, however, must fall outside the scope of this column, which is concerned with the preservation and development of constitutional democracy.
And here there are benefits that flow from the political events of the past weekend. The Constitution and the key institutions that underpin it, including the courts, the NPA, the Human Rights Commission and the media, have recently been placed under great stress, mainly but not exclusively as a result of the prosecution of Jacob Zuma.
Until Zuma won a victory in the KwaZulu-Natal High Court, no form of political rhetoric was beyond his supporters. Threats of killing to ensure victory, accusations that judges were counter-revolutionaries, claims that Zuma could never obtain a fair trial in the courts, the abolition of the Scorpions on the slimmest of justifications, proposals to restrict press freedom — all were placed on the daily agenda.
Since the judgement of Judge Chris Nicholson, there has been an eerie silence. But the concern remains: if the Supreme Court of Appeal overturns the Nicholson judgement and the NPA proceeds with its case against Zuma, will the storm troopers be summoned again to reheat the rhetoric against the same key institutions of constitutional democracy?
If so, what then of the future of constitutional democracy? Can the country’s democracy survive another full frontal attack of the kind launched earlier?
It is precisely because the future is so uncertain that the formation of a new political party holds so much constitutional significance. With its birth comes the possibility of a ferocious contest over the ownership of the Freedom Charter and hence the identity of the true custodians of the Constitution. That places the Constitution at the centre of the debate. In turn, both sides will be determined to prove that it is it which is the most dependable and trustworthy of constitutional guardians. It may be difficult to make the claim when reckless rhetoric is employed; when threats are made about the Constitutional Court in particular and the judiciary in general.
To an extent that process of restriction of excess of power has already been shown in the way the government has not interfered with the NPA’s decision to appeal the Nicholson judgement. It would have been rather difficult to order the NPA to cease the case after the judge had found that improper political interference had taken place under Mbeki. Similarly, it may be a problem for the ANC to move against the principles of the Constitution when it is faced with an influential opponent committed to its defence.
In the final analysis the recent political developments will create space for civil society to organise and speak up in defence of the promotion of the society promised in the Constitution. Perhaps it is too much to ask most of the media, particularly the electronic media, to promote the vigorous, searching debate indicated by the political conditions. But civil society, like it did in the 1980s, can become a powerful voice again and ensure that the space we enjoy at present is not just a Prague spring.