The constitutional conundrum

2012-03-03 15:26

As our Constitution turns 16 years, it has seen 16 amendments and a 17th is under deliberation.

This 17th amendment commences the admirable and necessary process of giving the judicial branch of state the institutional independence which it must have to give full effect and protection to the judicial independence.

Not a moment too soon, either.

Because we can no longer take for granted respect for the rulings of the courts and their right and duty to strike down law or conduct inconsistent with the Constitution – not when the president of the republic opines that split judgments prove that the majority is not necessarily correct, and that minority judgments sometimes have more logic, and that consequently we should look at reviewing the powers of the Constitutional Court.

President Jacob Zuma reversed this position by “reaffirming” the separation of the powers during his reply to the state of the nation debate, but the cat is out of the bag.

Deputy Minister of Correctional Services Ngoako Ramatlhodi is, of course, the person who really put the cat among the constitutional pigeons by writing last year that the separation of the powers was a major concession by the ANC during negotiations and that it “emptied” the executive and the legislature of power and “immigrated” it to the courts and the economy.

Ramatlhodi’s position is dangerous, but it is not in my view our greatest problem. The greater threat comes far more subtly, from people who essentially agree with Ramatlhodi but would never say so openly.

That threat tries to empty the courts and the prosecuting authority of the kind of people who would wield their power properly, leaving the form but substituting substance.

It does so by using the power of appointment and, in the case of the National Prosecuting Authority, also the power of removal from office – not only of Advocate Vusi Pikoli, but also Chris Jordaan, former head of the specialised commercial crimes unit and now perhaps the unit’s Pretoria head, Advocate Glynnis Breytenbach.

In the case of the courts, the threat includes an attempt to sign the judicial branch up to a political programme. There is more than one way of skinning the constitutional cat.

ANC secretary-general Gwede Mantashe, who shocked the nation before the governing party’s elective conference in Polokwane by calling judges counter-revolutionaries, resumed his bulldog growl last year when he effectively accused the Constitutional Court bench of being a bunch of politicians.

His fellow communist Minister Blade Nzimande, more familiar with political treatises than the actual Constitution, did the same when he sank his terrier teeth into the robes of the Supreme Court of Appeals’ Judge Mohammed Navs, writing for a unanimous court, and accused him of judicial dictatorship.

This was after the judge had said the least “we the people” can expect is a real and earnest engagement with the requirements of the Constitution by the president when appointing such officers as the national director of public prosecutions.

Nzimande thought Navs was intoning the call that “the people shall govern” when in fact he was quoting the Constitution, which commences with the words: “We, the people . . . adopt this Constitution as the supreme law of the Republic.”

Section 1 says it again, so does Section 2, and Section 74 sets rigid requirements for amendment of the supreme law.

Because the separation of the powers is inherent in the supreme law, and without it a parliamentary majority can do as it pleases and there is no longer a supreme law.

What is the revolutionary programme in terms of which Mantashe and Nzimande’s people want to govern?

Their fellow communist Jeremy Cronin tried to persuade us in an article he wrote in City Press recently. Cronin is usually the voice of reason emanating from the South African Communist Party.

But the acceptable face of the Red Peril proceeded to make his own clumsy assault in an attempt to prove that circumstances may arise in which it would be justified to attack the institution of the judiciary, as opposed to judgments.

What if, he wrote, the court rules in favour of the conservative white agricultural unions challenging the Mineral and Petroleum Resources Development Act?

It is unthinkable that they could, given the Bill of Rights, but what if they do?

Judges are fallible and not demigods, and what if a judge is in a consortium of commercial farmers sitting on mineral deposits?

Just think of their recent reluctance to declare their assets and interests in a register.

Perhaps the fact that they are or could be corrupt is what he is really saying, and this is frankly worse than Mantashe and Nzimande.

He may know something we don’t about impending appointments – consider the brisk interest of the politically well-connected in mining rights and equity. But even then, his argument fails – a majority of the 11 Constitutional Court judges would have to acquire a parcel of land with a pot of gold or platinum underneath, Zimbabwe-style, before a quorum of eight seated en banc could behave so disgracefully.

But I hope we do not now sink so low in this discourse.

The Constitution is indeed not a 19th century document which simply limits the powers of the state against the citizen with his or her property and other rights. It is transformative in its intent but neither is it a socialist manifesto.

I found the excerpt Cronin chose to cite from Judge Arthur Chaskalson’s recent address at the University of Cape Town very telling: “Transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end.”

Isn’t that exactly what the Cabinet’s proposed assessment of the role of the judiciary “in a developmental state” said in its own wicked way in November?

Mac Maharaj, Zuma’s spokesperson, told us it had to be seen as the context for the president’s shock remarks.

But it remains Cabinet’s position after this week’s meeting, judging by government spokesperson Jimmy Manyi’s Thursday briefing confirming the court’s judgments were to be assessed.

The Constitution is not a policy to be executed by the three branches sitting in a kind of glorified MinMEC (meetings where ministers and MECs from two of the spheres get together to establish cooperative governance). It is the supreme law. It has to be interpreted free of political influence.

The separation of the powers cannot carry a sunset clause of the kind which the man with the red socks at Kempton Park, Joe Slovo, cooked up for the public service.

What Cronin calls “our current Constitution” may be amended to give further effect to its own basic principles. It cannot be amended out of existence.

» Smuts is a politician, member of Parliament, and DA shadow minister of justice and constitutional development 

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