Constitutional law experts slam Zuma’s message to the judiciary

2011-07-09 16:34

President Jacob Zuma’s warning to the judiciary to back off and stay out of politics has been slammed by legal experts.

Zuma told the third annual ­Access to Justice conference in Sandton, Johannesburg, on Friday that once government had decided on appropriate policies, the judiciary could not, when striking down legislation on the basis of illegality, raise that as an opportunity to change policies determined by the executive area of government.

He said political disputes resulting from the exercise of powers constitutionally conferred on the ruling party through a popular vote must not be subverted.

Zuma told the judges at the three-day conference, said to be historic for bringing together the heads of the three state organs (legislative, executive and judicial): “The powers conferred on the courts cannot be superior to the powers resulting from the ­political and consequently administrative mandate resulting from popular democratic elections.”

However, constitutional law ­experts said Zuma should be reminded that the Constitution was still the supreme law of the land.

“The executive (the ANC government) cannot do as it pleases on matters of policy,” advocate Paul Hoffman from the Institute for Accountability in Southern ­Africa retorted yesterday.

Hoffman said Zuma “apparently needs to be reminded that the ‘tyranny of the (elected) majority’ is tempered in our democratic ­order by the constraints of the Constitution”.

Hoffman said: “Any law or any conduct produced as a matter of policy which is inconsistent with the Constitution is invalid,” ­Hoffman said.

He highlighted examples such as the Constitutional Court ­rulings on the Scorpions, as well as the Treatment Action Campaign’s struggle for pregnant women to gain access to ­antiretroviral drugs under the Mbeki-government’s despicable stance on HIV and Aids.

“It is the duty of the courts to uphold the Constitution by striking down laws and conduct that offend the principles and values of the Constitution when they are ­attacked by citizens aggrieved by the said inconsistency.

“The Bill of Rights obliges the state to ‘respect, protect, promote and fulfil’ the rights guaranteed to all in the Constitution.

“Respect for the rule of law, the tenets of openness, accountability and responsiveness to the needs of ordinary people are all fundamental constraints upon what the executive may properly do. The public administration is only obliged to execute the lawful policies of the government of the day,” Hoffman said.

Constitutional law expert Pierre de Vos said Zuma did not directly say so, but his comments basically mean: “Once a party with an overwhelming electoral support makes policy, it is not for the courts to interfere. That is not correct. All policy has to comply with the Constitution, whether it is about toilets in Makhaza or ­secrecy legislation or the disbanding of the Scorpions.”

De Vos said the Constitution states clearly that the “state has a positive obligation to protect and realise people’s rights”.

He added: “We chose to create a Constitution that is not a ­traditionally liberal Constitution as in other countries, but a transformative Constitution where courts have a bigger role in ­making sure government does the right thing to protect the rights of people.”

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