FALSE ALARMS AND THREATS TO THE CONSTITUTION

We should all welcome the strong endorsement of the Constitution that Minister Jeff Radebe gave to Parliament last week.  Quoting from Section 2, he proclaimed that, "the Constitution is the Supreme law of the land and any act or conduct which is contrary to it, is invalid and illegal."   He said that the legitimacy of our Constitutional democracy rested not only on the three arms of the State, but on the shoulders of each and every citizen of this country. "In our own respective ways, we must endeavour to ensure that the Constitution is a living document that requires all our people to put their shoulder to the wheel to ensure its survival and longevity well into the future."

We could not agree more.

Minister Radebe went on to observe that the constitutional right of assembly, demonstration, picket and petition, had to be exercised peacefully and unarmed.  "The Constitution does not sanction any protest that violates the freedom and security of another person, lead to injury or death of persons or damage to property, regardless of the reason for such protest actions."

He reported that the JCPS cluster had "adopted a zero-tolerance to corruption which threatens to erode the fruits of our hard-earned democracy.  The reality is that corruption is a matter with which we must collectively embark to uproot..."

The Minister added that the government had "taken a conscious decision to re-establish Sexual Offences Courts to complement the work of the Sexual Offences Unit in the Police" and that "sexual offences cases are placed on a prioritised roll..."

Great stuff.

However, Mr Radebe also made the remarkable statement that "after dealing with our contentious issues during the crafting of our new democracy" it was essential that "none amongst us politicizes (the Constitution) to the point of eroding its fundamental principles and values "such as the Bill of Rights and the principle of the separation of powers as basis for a just order and the peace and stability of our democracy".

The Minister added that it was "common cause" that the "actual threat to our democracy" might ironically turn out to be "false alarms about what are supposedly threats (to) values of the Constitution, including the principle of the separation of powers."  He implored members of parliament "not to create the impression that anyone amongst us is about to undermine the Constitution." How could this possibly be when "empirical evidence not only hails the ANC as its originator... but also as its architect, champion and defender"?

What were some of these "false alarms" to which Minister Radebe referred?
Could they include concerns over the Protection of State Security Bill - or alarm over the fact that the National Prosecuting Authority has refused to obey an order of the Supreme Court of Appeal to hand over tapes to the DA relating to the dropping of charges against president Zuma?

Might they have something to do with the manner in which Minister Radebe's predecessor ordered the then head of the NPA, Adv Vusi Pikoli, to drop charges of corruption against Police Chief Jackie Selebi?  Could they relate to President Mbeki's unconstitutional decision to fire Adv Pikoli or to the fact that the appointment of his successor, Adv Menzi Semilane, was set aside by the Constitutional Court? 

And how exactly does the release on "medical parole" of Schabir Shaik - who  was sentenced to 15 years imprisonment for corruption - fit in with the JCPS cluster's  adoption of "zero tolerance to corruption"?  What about the government's insistence on disbanding the Scorpions - the most effective corruption-fighting unit we have ever had - and its subsequent failure to heed a court order requiring it to ensure that the Scorpions' successor, the Hawks, enjoys sufficient independence? What about the decision of the NPA to drop charges against Lt-Gen Richard Mdluli - and more recently to drop charges against the "well-connected" Thoshan Panday and Col Navin Madhoe in KwaZulu-Natal - despite the admission of the KZN head of the NPA, Moipone Noko,  that there was a prima facie case against them? 

What about Nkandla?

Why was it necessary for ordinary citizens to take the Government to court to force it to adopt a proper language policy and to make provision for South Africans overseas to vote in our elections - and to appoint a commission of enquiry to investigate the arms deal?  Are such citizens alarmists - or are they putting "their shoulder to the wheel to ensure (the Constitution's) survival and longevity well into the future" in accordance with Mr Radebe's exhortation?

The government is clearly annoyed by increasing challenges in the courts.  It has adopted its own interpretation of "the principle of the separation of powers" which increasingly looks like an attempt to discourage the courts from pronouncing judgment on the constitutionality of laws and the actions of the executive.

On 8 July, 2011 President Zuma warned that "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".  In an article on 16 April 2012 Adv Ramathlodi, the Deputy Minister of Correctional Services, wrote that "judicial incursion into other spheres (of government) should happen only in exceptional and limited cases - if at all."

The reality is that the government loses virtually every court case that it contests.  The ANC decided at Mangaung that "the state should investigate the reasons for the perception that it has a poor success rate in the courts."   It does not have to look far: The government loses court cases because - too frequently - its actions are unlawful and its laws are unconstitutional.

The actual threat to our democracy does not come from "false alarms about what are supposedly threats (to) values of the Constitution" - as Minister Radebe would have us believe: it comes from the disturbing reality that the threats to the Constitution are, too often, all too real.

Dave Steward is Executive Director of the FW de Klerk Foundation.

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