In defense of the Constitutional Court
Prof George Devenish is a DA Councillor with the Ethekweni Municipality. He writes in his personal capacity.
It has been widely reported in the press that the ANC secretary-general, Gwede Mantashe, has accused the judiciary and in particular Constitutional Court judges of a “counter-revolutionary agenda”. This is part of a political and constitutional saga that has been unfolding as a result of the complaint made to the Judicial Service Commission (JSC) that Judge-President Hlophe had attempted to influence judges of the Constitutional Court to find for Jacob Zuma in the cases involving him before it. As a result Judge Hlophe counter-complained that the judges had made their complaint public before it was properly presented to the JSC.
In this sensational epic the integrity and esteem of the Constitutional Court have been impugned in no small manner, in a way that is epitomised by Mantashe’s rash and scurrilous accusation that the Court has a “counter-revolutionary agenda”. Obviously South Africa is facing a constitutional crisis, the exact consequences of which are difficult to predict. This is most unfortunate because the Constitutional Court has proved to be an exceptional institution, indeed the jewel in the crown of the new constitutional dispensation.
The Constitutional Assembly, which drafted the final constitution, elected to retain a specialist or “centralised” Constitutional Court, as was the position in the interim Constitution, instead of merely using the erstwhile highest court of appeal, that is the Appellate Division of the Supreme Court, that had existed from 1910. It therefore did not follow the American approach, involving a “decentralised” system, where the celebrated federal Supreme Court is the highest court for all cases including disputes relating to the application of the federal constitution. Before the introduction of the interim Constitution there was considerable discussion and profound controversy relating to the respective merits of the two systems. Ultimately it was decided that the task of constitutional adjudication was too fundamental to be entrusted to the erstwhile Appellate Division of the Supreme Court in Bloemfontein, since its legitimacy and moral authority in recent decades, particularly on crucial human rights issues, had been abysmal, and as a result it was too patently lacking in legitimacy for it to be expected to give expression boldly and imaginatively to the character and ethos of the new constitutional dispensation.
The Constitutional Court is manifestly intended to be the most esteemed court in the land because it is the ultimate guardian of the Constitution which is the supreme law of the Republic, which is the product of the Constitutional Assembly, an elected body representative of the whole nation.
The Constitutional Court has been of seminal importance for the implementation of the new dispensation in order to give credible and cogent effect to the supremacy of the Constitution and a human rights culture.
In its fifteen years of its existence, the Constitutional Court has in every respect been exemplary and has produced a remarkable and erudite jurisprudence that has given it an international reputation, and its sagacious and innovative judgments, such as the Grootboom, the Treatment Action Campaign and the Western Cape (delegation doctrine) cases, that are read and quoted in, inter alia, the American Supreme Court, the House of Lords and the German Constitutional Court. It has never during this period been accused of advancing any party political agenda and it has courageously and impartially upheld the independence of the judiciary, without fear or favour. It is now being censured by the governing party, since ANC spokesperson, Jessie Duarte stated on Thursday last week, that Mantashe’s views were those of the ANC. This is entirely unsatisfactory.
It is essential that individual South Africans and institutions, committed to the ethos and principles of democracy, make their voices heard in defence of the Constitutional Court and not allow this institution’s integrity to be impugned in the fierce political struggle for power taking place in the ANC. In a bold and forthright manner the Constitutional Court, by virtue of its celebrated judgments, has advanced the cause of democracy, human rights and social justice.
Its judgments must be subjected to intense criticisms, as part of the democratic discourse that takes place in South Africa. However, it should not be the target of unrestrained vituperative language such as that of Mantashe, that has the effect of impugning its legitimacy and integrity, which must do harm to democratic governance in South Africa. It is of the utmost importance that the moral authority of the Constitutional Court be respected. If this authority is undermined the legitimacy and independence of this court, which must of necessity play a vital role in the maintenance and development of a democratic paradigm in South Africa, could be permanently damaged.
South Africans, having strived and struggled for generations to secure, through the blood of the martyrs, a democratic system of government, involving, inter alia, the independence of the judiciary, at a sublimely great cost, need to maintain and deepen it.
Furthermore, it needs to be defended against the predations of those in the governing party and in the new body politic who prove to be politically unscrupulous. Political and social integrity must triumph over expediency and naked ambition, if we are to succeed as a nation at this time of political uncertainty and intense controversy.