President Jacob Zuma’s speechwriters made sure that he genuflected before the Constitution in his State of the Nation address last week but a few days later, in an unscripted interview, he trampled on it. None of the subsequent spin can obscure what we saw of the president’s real intentions for the judiciary in general and the Constitutional Court in particular. Zuma wants, through a “review” of the judiciary, pliant, homogenised Constitutional Court judges whose logic resonates with his own. He told the Star: “We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with. There are dissenting judgments we read. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?”
The president’s office moved swiftly to dress up his in flagrante moment by releasing a statement saying his words had to be viewed in the context of a Cabinet decision in November last year to mandate Justice Minister Jeff Radebe to “conduct an assessment of the impact of the judgments of the Constitutional Court on the transformation of society in the 17 years of democracy”. And that his intentions, and that of the review, were to help address apartheid’s legacy and “contribute in shaping our evolving constitutional jurisprudence”.
There is a paucity of information about who will be involved in the review and the weight its findings will carry. But it is already drawing legal criticism.
The Black Lawyers’ Association this week noted that such action by the executive showed a lack of a basic appreciation of the tenets underlying the separation of powers. It also pointed out that even if the majority ANC managed to get 75% of the parliamentary support and support from six of the nine provinces in the National Council of Provinces required to pass a Bill to amend the Constitution and the powers of the court, it would still come up against that very same court in a challenge.
The association called the review and any subsequent attempts to make constitutional changes a “tedious exercise”. It is astonishing that the executive displays such ignorance of the rule of law and a penchant for the apartheid days of parliamentary sovereignty with its untrammelled powers, which have so scarred many South Africans.
The Zuma administration is becoming increasingly — and deliberately — obtuse about constitutional principles in its dealings with the judiciary, the media and ordinary citizens. The National Prosecuting Authority argued that there were “certain categories” of decisions made by it that need not stand up to judicial review or public scrutiny. The Supreme Court of Appeal bench was astonished and Justice Mohamed Navsa, especially, voiced his “concern” that the NPA would be advancing such a position.
It is a position that resonates with that of Zuma — an intelligence operative and head of Mbokodo, the ANC’s secretive internal intelligence unit. South Africans deserve an independent Constitutional Court and transparent public institutions to ensure its hard-won democracy. The nation has, after all, endured bloodshed and social injustice to attain a freedom described by former president Nelson Mandela as “so glorious an achievement” that “the sun shall never set on it”. Mr Zuma, we will not let the sun go down on us.