But the president's statement, that the powers of the Constitutional Court should be reviewed, goes considerably beyond executive scepticism of the judiciary.

Since the advent of constitutional democracy, it has not happened that a president has explicitly asked for the reconsideration of the powers of the Constitutional Court. Because it was the president speaking, we must take him seriously. But, more significantly, we must assume that he was articulating not only his personal opinions, but a collective view shared by members of the executive that he leads. In fact, shortly after the president's remarks were published, the presidency issued a statement that seemed to entrench the belief that he was speaking on behalf of the executive. We were asked to situate the remarks of the president in the context of the ongoing review of the judgments of the Constitutional Court, the details of which will be announced in due course by the minister of justice.

Let us then accept the invitation from the presidency and consider the justification for the review of the powers of the Constitutional Court in the light of its record. Since the powers of the Constitutional Court are located in the Constitution, the natural starting point is the constitution. At the outset, I must emphasise the unscripted, yet pivotal role of the Constitutional Court in our democracy. It was articulated by former president Nelson Mandela when he inaugurated the Constitutional Court on February 14 1995.

He said: "The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues, we were not.

"Today I rise not as an accused, but on behalf of the people of South Africa to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."

With these words Mandela cemented the special place of the Constitutional Court not only in the legal system, but in the democratic dispensation as a whole. It was a court with the primary mandate of protecting human rights that are central to our conception of democracy. It was important to allocate this function to the Constitutional Court because the apartheid-era judiciary, which comprised essentially white males who were largely sympathetic to the National Party government, could not be trusted to protect and enforce constitutional rights. In other words, the establishment of the Constitutional Court was foundational to the idea of the new state based on constitutionalism.

But the court had no hope of discharging its mandate unless its composition was legitimate and the legal framework for its operation was enabling. A central tenet of its powers, therefore, had to be the power of constitutional review. This meant that legislative or executive powers became subject to review on constitutional grounds. But it has never meant that judges run the country. From the very beginning the court knew the potential and limits of its powers. For instance, when the court found the government's housing policy wanting on constitutional grounds, it left the executive free to create a new housing policy.

This tradition has continued. In recent times, and in cases fraught with political controversy, the court has made authoritative statements affirming the supremacy of the constitution but left the scope for governmental reconsideration of decisions intact.

In the matter of Hugh Glenister vs the President of the Republic of South Africa and Others, the court invalidated legislation establishing the Hawks but left the legislature free to rectify the legislation. Similarly, although the court invalidated the president's decision to extend the tenure of Chief Justice Sandile Ngcobo, it said such extension could be done through new legislation that met constitutional criteria stated in the judgment.

There have been cases in which the court found for the government in split decisions. The more socially divisive examples come to mind: it upheld the legislation that made prostitution illegal by a majority of one.

Similarly, in a case about the legalisation of marijuana, the court was split in the middle. About three months ago, the court decided, with a majority of one, that the Mail & Guardian had no right of access to the report about the elections in Zimbabwe.

Thus, the Constitutional Court has been performing a function it was established to perform. It has been true to the vision expressed by Mandela at its establishment.

Intimations about the limitation of its powers require compelling justification. It is not sufficient simply to assert the alteration of the court's powers because "sometimes the judges are not unanimous". Majority vote is the most practical system of judicial decision making. That is how it works everywhere, including in parliament where the most significant decisions affecting our daily lives are taken.

The executive's scepticism of the judicial branch is healthy for maintenance of democracy; it keeps the judiciary in check. Like any power, the judicial power is vulnerable to abuse, which is why the president's expression of doubts about the parameters of judicial authority is understandable.

But we deserve a thoughtful discourse about the trajectory of our democracy. This must entail an examination of the extent to which the executive and the legislative branches of government have fulfilled their constitutional mandates. It must also entail an inquiry into the nature and causes of the persistent levels of inequality in society.

Despite its obvious importance, such discourse has escaped us. It must be rekindled urgently. This way, the most important legacy of Zuma shall be his ability to allow us the space to express our views and - to deploy his favourite term - debate. But the debate must be informed by facts and experience.

Crucially, at this stage we do not know which powers of the Constitutional Court should be reviewed and why. If we are to undertake the task called for by the president, we must recall the words of the late Chief Justice Ismail Mahomed, who said in our democracy certain constitutional provisions are so basic to the constitution that their review would "effectively abrogate or destroy" it.

Given the centrality of judicial power to review legislative and executive action, its reconsideration is the reconsideration of our democracy itself.

Ngcukaitobi is a member of the executive committee of the Council for the Advancement of the South African Constitution