The appointments to the Constitutional Court will assume office confronted by, arguably, greater challenges than those the original court faced.
In 1995 the nonracial vision enshrined in the Constitution seemed attainable, such was the effect of the leadership of Nelson Mandela, the optimism born of the peaceful quality of the political transition after the election and the hegemony of the ANC’s political tradition.
Fifteen years later, that vision is under severe pressure. Within the legal context Chief Justice Pius Langa, with his distinguished colleagues who represent the very best of the nonracial ÂÂtradition, are called ”house negroes” without demur from critical elements of civil society.
Ironically, the Judicial Service Commission (JSC) hearings took place at Kliptown, where the Freedom Charter was born; yet at least three of the new appointments made by President Jacob Zuma to the JSC are from a political tradition that rejected the Freedom Charter and with it the nonracial covenant made by the ANC with the people of South Africa more than half a century ago.
A number of further challenges flow directly from this. The call for the Africanisation of the law, coupled with the allegation of ”green robes, white justice”, needs to be confronted. Problems of access to justice for the majority of the population — including the inability of the legal system to respond to the right of the majority to have their cases heard in any of the indigenous languages, and the arcane nature of legal procedures — require urgent attention.
But what of the argument that the Constitution is an alien document, that the key concepts are borrowed from Western culture and that African ideas are not central to the interpretative process?
It is an argument that has merit in that any legal system should resonate with the values, traditions and culture of the society. But the arguments raised are always short on detail and invariably omit to mention those cases where the Constitutional Court has so shaped the law.
The Richtersveld case (on land rights) and the Bhe case (on inheritance law) are two examples. Indeed, the minority judgment of Judge Sandile Ngcobo in Bhe points to a meaningful possibility: the local community, through its court structure, was mandated to develop a law of succession that was in accordance with the Constitution and the values of the community.
A further challenge has been posed by a conservative side of society that is not restricted to religious groupings. The constitutional provisions that have recognised the ”others” in our community — gay men and lesbians, who consequently now enjoy citizenship — are presumably to be disregarded if the demands of these voices are to be followed. On occasion this campaign is linked to the argument that the Constitution is ”criminal friendly” and courts are complicit in creating a legal framework that reduces the ability of the police to curb crime.
The first of these challenges wishes to drag society back to the intolerance of the past, so that our differences are used to curb freedom and the state becomes the moral police. Coupled with this approach is that of the crime-control advocates who are less concerned with ”moral truth” than with a rejection of fact.
That fact is that the Constitution is not the cause of crime. Without proper police investigation, efficient prosecution and cooperation from communities to fight crime, no change to the Constitution is going to make a dent on crime.
Besides, do we want to rely on the kind of confessional policing that was employed by apartheid police during our dark past?
It is understandable that, desperate for solutions to the crime wave that continues to engulf the country, demands for easy-sounding solutions gain traction, but the onus is surely on these advocates for constitutional diminution to explain how their arguments are going to make a practical difference.
A further hurdle is the relationship between the constitutional guarantee of socioeconomic rights and the lack of delivery of basic services to millions of South Africans who are the ones most deserving of being heard. Within the past few weeks the Constitutional Court has heard two critical cases dealing with the provision of water, lighting and sewerage to communities under true economic stress.
Both cases call for the courts to intervene to compel delivery. Both cases pose the problem of how to realise these rights without breaching the doctrine of separation of powers and overreaching the scope of the judicial function. Such cases, which are likely to increase if the government fails to deliver, could set the court on a collision course with the government — which, understandably, claims a democratic prerogative to determine social and economic policy.
Even this cursory summary of the present position reveals the extent of the burden placed on the Constitutional Court. Although the Constitution may not be under the threat that pessimists would have us believe, the pressures are real.
Failure to resolve these problems and to promote the progressive vision of the Constitution, so that it is seen to continue to work for the citizens who most need its protection, will place constitutional democracy under great jeopardy from those voices who wish to curtail the present political model.