The year 2008 has proved to be disturbing for our constitutional democracy. The country entered the new year with the Polokwane conference casting a large shadow over the legal landscape.
The resolutions passed at the conference replicated almost completely the design of the Superior Courts Bill, which previously had been so vigorously resisted by the judiciary. Much talk was heard about the need to transform the judiciary as a matter of urgency. What that meant was open to some doubt.
The scope and meaning of judicial transformation became clearer as the NPA again moved to prosecute Jacob Zuma. Attacks against the NPA were conflated with attacks on the judiciary, as if the latter institution was responsible for the prosecution of Zuma. Not even the centerpiece of the ANC’s constitutional legacy to the nation — the Constitutional Court — was spared the wrath of the dogs of legal war. ”Counter-revolutionaries” and ”unreconstructed defenders of the previous status quo” were some of the carefully considered epithets employed essentially to argue that Zuma could not enjoy a fair trial.
Matters came to a head with the unprecedented complaint lodged by the Constitutional Court against Judge President of the Cape High Court John Hlophe. The complaint was that he had interfered in deliberations concerning Zuma’s appeal in the Constitutional Court. Here was a problem that may appear unique in constitutional democracies: the judges of the highest court of the land lodge a complaint of interference against one the most senior judges in the land.
Instead of urging expedition in the resolution of a potential constitutional crisis and then refusing to comment on the details, certain leading members of the ANC appeared to come out in support of the judge president, obliquely suggesting that he was singled out because of his commitment to transformation. This raised the possible implication that the members of the highest court resisted transformation, even those who had been imprisoned for their politics.
As this saga continued the rhetoric against the courts increased, particularly when the NPA prepared for another challenge to its proposed prosecution from Zuma’s legal team. Coupled with the passing of legislation disbanding the Scorpions, the incessant attacks on the judiciary propelled the country towards a constitutional precipice. And then came the judgement of Judge Chris Nicholson, which set aside the charges against Zuma. Suddenly, beautiful, sober judges were discovered and the attacks disappeared.
We thus end the year in a period of relative calm. But storm clouds may be gathering. The NPA has appealed the Zuma judgement. If the Supreme Court of Appeal decides against Zuma and overturns the entire Nicholson judgement, and the NPA decides to proceed with the prosecution, then what happens? Surely Zuma would appeal to the Constitutional Court. That could place a further dampener on attacks against the judiciary, pending the outcome of the appeal. But it is equally likely that the populist temperature could increase sufficiently to return the country to the pre-Nicholson climate.
So, as we move into 2009, one prediction can be made with confidence: while the Zuma case continues, turbulent constitutional times are likely. There is, however, a significant difference between mid-2008 and now, and that lies in the existence of the Congress of the People (Cope). However much its leadership may have been responsible for the proposals to circumscribe judicial independence when in office, the sudden discovery of constitutional values and the contest around the Freedom Charter may well deter hotheaded attacks against the central pillars of the Constitution during an election period.
The fact that the future is so uncertain calls for intense activity on the part of civil society to assert the key link between the Constitution, its institutions and the attainment of a society that truly empowers the majority of the population. If civil society sits on its hands and fails to use the political space that has opened in the past few months, 2009 may well see an intensification of what at one stage looked like a serious crisis.
This scenario also raises the imperative of a resolution to the present conflict between the Constitutional Court and Hlophe. That process must be sufficiently transparent so that the outcome can be understood by society. Of equal importance is that this resolution be predicated on principle that moves beyond the racial solidarity which has so divided the legal community. A continuation of this polarisation could prevent much-needed movement towards non-racial legal institutions deeply committed to ensuring that the constitutional vision is implemented by the transformation of our society.