Judicial paranoia grips ANC

03 November 2011 - 02:23 By Brendan Boyle
subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now

President Jacob Zuma set alarm bells ringing again on Tuesday when, in an address to parliament, he effectively warned the Constitutional Court to leave the business of government to the government.

Saying goodbye to former chief justice Sandile Ngcobo and welcoming Chief Justice Mogoeng Mogoeng, Zuma pitched his concern mainly at the opposition.

"We must not get a sense that there are those who wish to co-govern the country through the courts when they have not won the popular vote during elections," he said.

That concern echoed a similar complaint by ANC secretary general Gwede Mantashe in an interview with Sowetan editor Mpumelelo Mkhabela in August, when he charged that the opposition was trying to use the courts to overrule the ANC's electoral majority.

"Every time there is a piece of legislation that passes through parliament - for example the Protection of Information Bill - there is a threat that it will be taken to court and the court might position itself emotionally to reverse it. That's a problem," he said.

Other ANC leaders have made similar comments on public platforms and in private conversations, reflecting a growing concern within the ruling party about the power of the courts and the use of that power by government critics.

Zuma, Mantashe and these others are not men and women opposed to democracy or bent on dismantling the structures put in place after 1990, so we need to listen to their arguments knowing they are based on a legitimate analysis of the constitutional state, even if we do disagree with it.

Part of that context is the value government leaders and others place on the electoral mandate.

The ANC has consistently polled above 60% in national and local elections since 1994. Most party leaders choose to see that as a blanket endorsement of every idea expressed in the party's election manifestos.

The 2009 manifesto ran to 15 pages summarising the ANC's policies on everything from housing and education to Zimbabwe and Burma. The more detailed policies papers run to hundreds of pages.

It cannot be argued that we get to make three black crosses every five years - one each for a national, provincial and municipal government - and that we must then accept everything done by those we elect.

That is why the constitution and, under its umbrella, the rules of every level of government, place so much emphasis on consultation.

The dispensation we agreed to in 1994 assumes that those we elect will listen to all of the people, not just those from the same party, and craft their policies in line with the views expressed on each separate issue.

But they don't.

The Protection of Information Bill cited by Mantashe is just one example of a process distorted to suit the views of the party elite rather than the general public or even its own membership.

Every single submission during parliamentary consultations was either critical or damning of the draft, but most of the provisions that drew the sharpest criticism were retained.

If those provisions are indeed in conflict with certain provisions of the constitution, then opponents have a right and probably an obligation to challenge them before the Constitutional Court.

The preamble to the constitution states: "The Republic of South Africa is one, sovereign, democratic state founded on the following values:

  • Human dignity, the achievement of equality and the advancement of human rights and freedoms.
  • Non-racialism and non-sexism.
  • Supremacy of the constitution and the rule of law.
  • Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government to ensure accountability, responsiveness and openness."

The second clause says: "This constitution is the supreme law of the republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

Zuma told parliament this week, however, that the courts should not try to make policy.

"The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote," he said.

Well, actually, they can. That is exactly the point.

In a principle fleshed out further in the rest of the constitution, the preamble establishes that document as the gold standard to which successive generations must adhere, and it provides that those who feel the government of the day is not doing that can challenge the executive.

The ANC and Zuma's current cabinet do have the responsibility to craft, adopt and implement policy, but it does have to be within the framework set by the constitution.

And that has to be done with the intention to govern well in the interests of all South Africans and not for the convenience of the elite.

An unfortunate consequence of Zuma's presidency has been that the culture of greed and corruption which even his ministers acknowledge has so tainted perceptions of the government that the analysis of legitimate policy decisions becomes entangled in the analysis of illegitimate efforts to protect the path to riches.

There is a tendency based on the evidence of corruption to distrust the motivation for every executive action.

In that context, the political opposition and even civic organisations opposed to some or other government action do need to exercise their right of challenge carefully. Society would not function on any level if everyone demanded the full exercise of every right at all times.

Surely the best yardstick to measure the business of government should be the long-term best interest of the country and its people, rather than the short-term advantage of any faction or group.

The courts should be used to protect that long-term interest and not, by any player, for merely short-term gain.

If that is what Zuma is arguing for, he is correct.

subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now