They say they want a revolution

2012-02-02 00:00

IN his youth, retired chief justice Arthur Chaskalson was reputedly a keen soccer player with a fine appreciation of the intricacies of the off-side rule. In his retirement, after a long and illustrious career that was crowned by his leading the Constitutional Court for the first 10 years of its existence, he has emerged as a super referee to red-card persistent critics of the Constitution, the courts and the direction of transformation, for their infringements of the off-side rule in governance.

Speaking to a workshop at the University of Cape Town during which the Administrative Justice Association of South Africa was launched, the former chief justice delivered an address in which he meticulously analysed the nature of the values of our Constitution, the inwardness of its transformative tenets and the proper implementation of transformation via the judgments of our courts. He rubbished the views of those who argue that the Constitution is a stumbling block in the way of transforming SA society and that the courts are an untransformed bastion of conservative resistance to the transformative intent of the new post-liberation order.

The focus of this comment relates not to the content of the address, but to the answer which the retired chief justice gave to a question he was asked after delivering it.

The question related to the clash in values between the Constitution and the values of the National Democratic Revolution (NDR) to which the governing alliance (the ANC, Cosatu and the SA Communist Party) subscribes. It was suggested that this clash is the cause of all the trouble.

Sidestepping with the nimble grace of a centre forward and smiling sweetly, the retired chief justice replied: “I have always thought that the values of the NDR are in the Constitution.”

The problem is that there are those within the Tripartite Alliance who do not agree with his deferential and deflective reply. Gwede Mantashe, who chairs the SA Communist Party and serves as the secretary general of the ANC, is at the forefront of these critics. He mutters about “counter-revolutionary judges” who enforce the Constitution. Ngoako Ramatlhodi, deputy minister of Correctional Services, feels the Constitution strips the legislature and executive of power.

While the former chief justice suggested public dialogue on what the critics of the Constitution actually want in its place, the content of that engagement belongs more on the political than the legal terrain. It is a debate that takes place largely within the broad church that is the Tripartite Alliance. Opposition politicians seem fearful of engaging with the NDR.

The effect of this is that the NDR is pursued without public debate, rather than as a result of honest engagement in the realms of ideas and values. This is not to say that the ANC is devious about the goals of the revolution it espouses. A visit to the “strategy and tactics” page of its website reveals the forward planning that goes into the realisation of the goals of the NDR.

The difficulty is that many of its goals are indeed inconsistent with the transformative goals of the Constitution. Under the Constitution, the revolutionary goals are invalid and cannot be realised without radically changing the existing dispensation. The courts are enjoined to strike down conduct which is inconsistent with the Constitution, and they do. A one-party state in which the party and the state are effectively indistinguishable is a far cry from the multiparty democracy under the rule of law envisaged in the Constitution.

Ranged against them, but within the Tripartite Alliance, are many who do not embrace NDR values. The report of Trevor Manuel’s National Planning Commission is mainly based upon constitutional values, not those of the NDR. The thinking of leading ANC figure Joel Netshitenzhe is that entrenched human rights and a “law-governed” society with the separation of powers in place are ANC policy. Deputy President Kgalema Motlanthe speaks of the need for the ANC to “renew itself by re-emphasising the traditions and core values” and preventing itself from being corroded by the sins of incumbency. He envisages the ANC emerging “fully consistent in outlook and orientation with the character of a modern progressive party”.

It is clear that the first three comrades are not singing off the same hymn sheet as the latter three. The late Kader Asmal publicly called for the scrapping of the NDR. If its supporters were to heed his call, the clash in values that prompted the retired chief justice to speak out so resoundingly would end.

The NDR is indeed a matter for public discussion.

• Paul Hoffman SC is a director of Ifaisa (www.ifaisa.org)

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