We need to think critically but honestly about our legal future

Is populism not mostly dishonest? Maniacs like Adolf Hitler and Joseph Goebbels might have believed the Nazi propaganda they dished up for Germans who were down and out after World War I. But does a narcissist like Donald Trump believe that the lies he spreads to simple-minded, needy, conservative Americans will make America great?

Populist leaders tell the dissatisfied or disgruntled masses what they want to hear to be regarded as their saviour — regardless of whether it is true or false, possible or a pipe dream.

Minister Lindiwe Sisulu’s statements about judges, the Constitution and the rule of law caused anger and embarrassment. Not being a political analyst, or a psychologist for that matter, I have no view on her widely alleged presidential ambitions, or whether she is capable of writing the relevant piece herself. I offer a few thoughts on some points.

Much attention was given to the reference to black judges as having colonised mindsets, akin to “house Negroes”. Judges are indeed not “demigods” (as one commentator referred to them), above criticism. The condition that criticism must be “well-informed” and “constructive” is an outdated cliché. 

How well-informed and erudite must an uneducated mother be before saying in public outside a courtroom that the judge who convicted her first-born son of murder must be mad to think that a good child like him could do an evil deed like killing his girlfriend? 

How many constitutional court judgments must the poor residents of an informal settlement read before expressing their disappointment with the fact that their case for electricity and toilets failed? After all, their confident human rights lawyer promised them victory when they were bussed in to sit in court all day, listening to expensive arguments by counsel.

The limits of criticism depend partly on the knowledge and status of the one who expresses it. A political leader, member of a mighty government that appoints judges, has to be more responsible than the sad mother or desperate, homeless person. There is a difference between the honest venting of pain and despair by the powerless and a calculated attack on the intelligence and integrity of black judges and the justice system by the powerful.

The Constitution and courts are not responsible for poverty. Courts have given several judgments in favour of the sick and the homeless. Some of these were vehemently opposed by government representatives; others simply not obeyed and executed. The role of courts in eradicating our biggest problems — poverty and inequality — is relatively small. The solution lies in political will and sound economic policies. The Constitution provides the framework for progress.

Section 184(3) of the Constitution tasks the South African Human Rights Commission with monitoring the realisation of the socioeconomic rights in the Constitution and obliges the government to submit yearly reports to the commission. 

In a recent publication, Professor Danie Brand points out that this reporting mechanism collapsed not long after it had come into being, inter alia because almost from the onset the commission experienced debilitating tardiness, if not resistance, from organs of state in submitting reports. A potentially extremely useful mechanism provided by the Constitution has been rendered useless. This is one example.

The concept of the rule of law has developed in slightly different forms in several countries, in response to centuries of brutal dictatorial kings, emperors and warlords the world over. Presuming that laws are made by a democratically elected legislator, everyone — from the president to the police sergeant and robber — is governed by the law.

It is not that simple, though. In today’s world colonisation is regarded as reprehensible. Decolonisation has been advocated for decades, around the writings of Frantz Fanon, the French West Indian psychiatrist and philosopher, and several others.

Linked to decolonisation, a vibrant stream of thought among young academics here and abroad works with critical race theory and critical feminist theory to deconstruct legal traditions. Democracy is seen as mere inclusion, whereas radical restoration is required. Some thinkers regard themselves as “constitutional sceptics”, or even “constitutional abolitionists”. The American founding fathers drafted their constitution to retain power for the powerful and further exclude the marginalised, according to the famous linguist and philosopher, Noam Chomsky.

These ideas cannot be ignored. It is not always fair to ask philosophers and artists who question the establishment to spell out an alternative. When a student asked French philosopher Jean-Paul Sartre what the system they fought against would be replaced with, he answered: “I don’t know — I just want to see the damn thing destroyed.” Systems such as slavery and Nazi rule may indeed be so bad that they must be destroyed, regardless of what may follow.

But throughout the struggle against apartheid — a crime against humanity — there was a vision of the society that was to follow, legally and constitutionally. This developed over decades and culminated in the Constitution.

When we call for radical transformation we do not necessarily need an exact blueprint of a new system of government. Some basics are central though. Will law be made by an elected legislature? Will we have independent courts? And a constitution? If so, how will it differ from the present one that recognises the rights to life, human dignity and equality?

The rule of law is recognised in many democracies, also in Africa. Whether it could be labelled “Western” or “colonial”, perhaps matters less than the question: what else? It does not necessarily represent the ultimate climactic end of human thinking, but seems to be better than the rule of the king, queen, or president, or the one with the deadliest machine guns.

Causation-wise, our Constitution is indeed the result of violent colonial conquest, as sometimes argued. But, so am I. As a white person I would not have been in Africa — or even existed — if Europeans did not colonise it. The same applies to Bram Fischer, Beyers Naudé and Arthur Chaskalson. Should white people leave, withdraw, or contribute?

The fact that the Constitution was a negotiated compromise, does not mean that it was selling out. Anyhow, it can be amended by any party with 66% support in parliament. Even the rule of law, one of the founding values in section 1 of the Constitution, can be abolished with 75% support.

Law faculties are engaged in continuous debate on the transformation of the curriculum, including the role of customary law and of concepts perceived as Western and capitalist.

Without ongoing critical thinking, progress cannot happen. Fanon mentioned “a radical cleansing of the coloniser’s psyche from the heads of the one colonised”. This applies to us all. But decolonisation is not the destruction of the former colony and its people. To survive our problems we need creative thinking, with integrity; not vulgar populism as a blunt tool to capture power and glory.

Our new chief justice must have integrity; fierce independence; a sound understanding of legal theory and our society; empathy for our people; and outstanding intelligence. Choosing administrative experience over intellectual excellence may be a way to contain judicial independence. Our legal system is in dire need of leadership — like well-reasoned judgments by our apex court and guidance from our top judge.

Johann van der Westhuizen is a retired justice of the constitutional court and assisted in the drafting of South Africa’s Constitution

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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