When the executive branch of government undertakes a review of the Constitutional Court and its powers, we may be witnessing the most lethal assault yet on our constitutional democracy — posing the most searching examination of our commitment to real freedom since it was won in 1994.
This is because of the pivotal role assigned to the Constitutional Court as the final arbiter of disputes about the legality of laws passed by our democratically elected Parliament and executive actions undertaken by our government.
The Constitution offers a vision for the transformation of our country into a nonracial, nonsexist and equitable society. Its Bill of Rights includes, among others, socioeconomic rights such as access to decent basic education, healthcare and housing and to water, a clean environment and social security.
It assertively mandates society, in its journey to an equitable dispensation, to redress the legacy of inequalities of the past. The Constitution is the embodiment of our struggle for liberation, codified in what became the supreme law of the land. We, as a central part of our victory over apartheid, chose constitutional democracy.
With careful deliberation we turned our back on the system of parliamentary supremacy that Âenabled the abuse of power known as apartheid. By an overwhelming majority, South Africans, through their democratically elected Constitutional Assembly, opted for a constitutional democracy that circumscribes the power not only of the executive, but of other arms of Âgovernment through a system of checks and balances.
Importantly, the inevitably controversial role of determining the constitutionality of executive and legislative actions, as well as those of our fellow citizens, rests with the judiciary and, ultimately, the Constitutional Court as the primary custodian of the Constitution.
We could have opted for a system of parliamentary sovereignty in which a dominant majority party changes laws and policies at its whim. Informed by experiences elsewhere in post-colonial and liberated countries, we opted to entrust our future to the Constitution rather than the absolute rule of a leader or government.
In our system every policy and law must comply with the Constitution. Arbitrary or capricious rule is no longer permitted. Hence the question: Are the recent political attacks on the judges not a clamour for parliamentary sovereignty? Can South Africa afford a return to the unfettered rule of Parliament or a leader?
You can be forgiven for concluding that the so-called review of the Constitutional Court is nothing more than a euphemism for reining in or intimidating the judiciary. After all, the recent and strident hostility by some in our government towards the judiciary has been expressed unequivocally enough, leaving little room for doubt that this current phase is more than just the natural tension that can often emerge between the different branches of a robustly democratic government.
Perhaps because of the frustrations provoked by a litany of errors and blatant failings, some apparently prefer to seek a convenient scapegoat — the Constitutional Court.
Disappointingly, the charge against the court is led by the president, whose oath of office enjoins him to uphold the Constitution. ANC policy is unambiguous in its commitment to separation of powers and the independence of the judiciary. These new developments may have gone far beyond the ANC’s mandate.
Where in the Polokwane resolutions is there a call for a diminution of the powers of the Constitutional Court? Where in the ANC’s 2009 electoral manifesto can one find such a proposal?
A dangerous and potentially destabilising project that might have untold consequences for our democracy is being pursued. The judiciary is being isolated politically through populist rhetoric as an illegitimate entity that is antagonistic to the elected legislature and executive. The Constitution, rather than the policy and administrative shortcomings of the government, is presented as the pretext for the failure to deliver on the expectations of the people.
This is as reckless and irresponsible as it is unreasonable and unjust. Moreover, such an approach is reactionary and anti-progressive. We must ask the question: Is the so-called review of the powers of the Constitutional Court not only the first step in a retreat from constitutional democracy, but also a retreat from the progressive traditions of the ANC?
The public protestations of commitment to the Constitution, such as the opening section of the president’s State of the Nation address, sit rather uncomfortably alongside these developments.
An executive that threatens to review the powers of the Constitutional Court cannot in the same vein claim either a commitment to the Constitution or the vision of socioeconomic transformation and equality that it articulates, and thereby it offends the progressive political tradition that underwrote its inception in 1996.
Sipho M Pityana is a business leader and the chair of the Council for the Advancement of the South African Constitution.