Attack on ConCourt needs clarification

When President Jacob Zuma speaks to the nation, he must be taken very seriously. He is the democratically elected leader of the country and, subject to the Constitution that defines his powers, he has a mandate to lead policy formulation and implementation. When he announces plans to review the powers of the Constitutional Court, South Africa is entitled to take him at his word, no matter how much Shane Warne-type spinning follows.

Two weeks ago this column warned that the government’s gripe with the courts turned on the power of constitutional review of the legislature and executive.
Now we know this is the case because Zuma has told us so. When the president speaks of reviewing the powers of the court, he can only mean one thing—that this power of review should be curtailed.

What justification has been raised for this new initiative? Firstly, we are told that, when the court is split, the minority judgment may be superior and hence there is no intrinsic reason why the majority judgment should hold sway. Indeed, it is true that once a case goes to the highest court a majority vote dictates. But that vote is premised on majority agreement with written reasons.

Agreed, a majority judgment today could be overturned by the court in a subsequent judgment, but that does not mean that the minority judgment should enjoy a weightier claim than the majority. To the contrary, if a majority judgment is shown to be contrary to legal doctrine or the legal convictions of the community, the majority risks losing much-needed legitimacy. But there is no superior system yet devised for breaking the judicial deadlock.

Could it be that the government is anxious that, whatever appointments are made to the court, it cannot command a guaranteed majority—at least for a few more years?

Another reason given is about trans­formation—an alleged lack of commitment to it becomes the reason for a Cabinet review of the court’s record. Unfortunately, a definition of transformation has not been provided in any of the statements seeking to justify the need to review the powers of the court. Even if it is restricted only to demographic representation, as retired Chief Justice Arthur Chaskalson observed in a recent lecture, the leadership of the judiciary is all black, only three members of the Constitutional Court are white and the majority of the balance of the judiciary is also black. Although women are distressingly underrepresented on the Bench, this does not seem to be the key focus of the attacks.

Let us then define transformation as the substantive change of the social, economic and political conditions of the majority of South Africans inherited from apartheid to an egalitarian society envisaged by the Constitution.

There are left-wing critics of the Constitutional Court who gaze approvingly at some South American jurisdictions and argue that the court has failed its mandate. But, reading the arguments of Zuma and his critics, it is really stretching the imagination to argue that the president is upset by the court not extending its reach, particularly in demanding a more aggressive response by the government to social and economic rights as guaranteed under the Constitution.

Expressed bluntly, if the court stands accused by the government, the reason is not because it has failed to come to the aid of the homeless or other impoverished communities. Nothing said by Zuma or any of his ministers, deputy ministers or ANC comrades suggests that the court should do more or be given greater powers in holding the government to account for failing to deliver basic goods and services to the poor. To the extent that the court has failed the poor, a review of the judicial record is to be welcomed.

Nor can the justification be found in the idea that section 45 of the Constitution mandates Parliament to set up a committee to review its operation on an annual basis. This section was surely not intended to constitute a review of the core structure of the Constitution, which is enshrined in section one and which can be amended only by a special majority of 75% of the members of the National Assembly.

The only plausible answer to the current initiative is that the government wishes to circumscribe the power of judicial review. It seeks to limit the court by constraining its powers—not, it should be emphasised, to respond to the needs of the poor, but because it does not want to be held accountable in any way to the carefully drafted strictures of the Constitution.

Could it be that the president’s supporters do not want the courts to review and possibly set aside the decision of former director of public prosecutions Mokotedi Mpshe not to proceed with the prosecution of Zuma on charges of corruption? That appears not to be the kind of power they think courts should possess. Of course, they are free to criticise judgments they consider to be wrong, but that is a different matter to curtailing constitutional democracy, which rests on a principle of constitutional review.

If that is not the reason for the recent moves, it is high time the country was told specifically what has motivated this call for a review. Without a clear explanation, the inference drawn in this column sadly becomes irresistible.

Is it too much then to ask that the present chief justice enter the arena and defend the Constitution as it currently stands?

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