I'm sure by now most South Africans are aware of the debacle of President Jacob Zuma "nominating" Judge Sandile Ngcobo to replace Chief Justice Pius Langa. Setting aside the presidency's evasive use of the words ‘nominate' and ‘appoint', why would Zuma nominate a candidate to be Chief Justice in the first place, let alone ‘appoint' him without fulfilling constitutional obligations, as required by Section 174 (3) of Chapter 8? The spokesperson in the presidency, Vincent Magwenya, insists that proper consultations were made and letters written to opposition parties, something these parties deny. Somebody is surely lying here, or, if we must be diplomatic, much use is being made of terminological inexactitudes.
Perhaps I've grown too cynical but I think the reason why president Zuma jumped the gun with this unprecedented move of nominating his preferred choice before proper consultation was not an oversight on his part, or his legal team. I think it was done to block the Judicial Service Commission (JSC) from recommending any other individual to him. They knew that if the JSC were to recommend another individual the president would have been forced to come up with compelling reasons for preferring another person. That said, if this was an oversight, then it tells a lot about the calibre of men in the helm of our country's executive decisions.
No one is so naive as to suppose a ruling party of any government will not seek to appoint judges who reflect its values, or lack of; but showing disregard to proper constitutional procedures is another thing. For that matter, a party that is confident of its progressive values will have no problem making moderate nominees who'll garner some measure of bipartisan support to judicial seats. But the ruling party's fear of this tells a story about its governing confidence and grasp of democratic values.
It is most worrying the ruling party has now, after few recent successes, adopted a cavalier attitude towards the constitution of the country. They feel above the law, basing their governing attitude, not on the Constitution, but on their own whims and desired effects.
They ignore opposing views without testing their validity; bend the rules to suit political powerful wills. They manipulate language to achieve the vain glorious goals of the so called National Democratic Revolution. To achieve all these goals they've no qualms eroding fixed meanings and standards as tabulated in the Constitution.
The challenge of democracy has always been on how to limit state power, political factions and powerful individuals from nullifying individual and societal liberty rights. The American founding fathers realised these dangers from the beginning of their democratic project. James Madison, and the framers of the American Constitution, designed a federal government to hinder the emergence of factionalised cult personalities and similar caudillos. They were wary of what they termed the tyranny of the majority and so decided to guard the fundamental rights of individuals and minorities by establishing what eventually became known as a strong Constitutional democracy.
Constitutional democracy has since then been the best means to control the majority power from harming other citizens whose political strength is in the minority. In The Federal Papers Madison wrote that factions are "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Does that sound familiar?
It is easy to control a minority faction by a democratic process. At worst a minority faction, Madison wrote, "may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution." But a faction that has the backing of the majority may easily disguise their abuse of law through manipulation and changing of laws. The South African state, under the rule of the ANC, has grown by bounds into machtstaat, a state based on might of arbitrary will of persons in power.
The problem with factions, plotters and mutineers, is that they spend all their energy concentrating on taking over power, and forget to plan for what they'll do once they take over power. Most of their time is spent in trying to manipulate public opinion. "When a majority is included in a faction," Madison wrote, "the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens."
It is then not surprising to see governing debacles and dearth of vision under this situation. When they encounter problems in effective governance they see solutions only in changing laws, or disregarding them, to suit their whims. It's no wander we've lately been fraught by proposals for constitutional amendments. The other example is the proposed amendments to Sections that deal with laws governing our provincial and local government structure. The excuse we are given for this is it'll facilitate effective service delivery, by that meaning centralised bureaucracy. It is not clear how the proposed amendments will achieve this.
Common sense tells you there's nothing wrong with most of our laws, it is the implementers that are a problem. What we require is the improvement of public official efficiency, the drivers not the machine. In every organisational structure, the world over, everyone knows the way to go is from bottom up. Subsidiarity is the only way to go if we are aiming at self-sufficient societies and local economies. But our rulers seem to determined to do everything to avoid being goaded by sense.
The Catholic, Justice and Peace Commission, under the penmanship of its official, Billy Maseti, recently published in the Cape Times its submission to the Parliamentary Commission on the constitutional amendments. It made this point; "Using amendments to overrun the constitution means the constitution could be denigrated to the level of legislation/policy, and respect for the rule of law ultimately gets undermined."
Lest they think we are Constitutional fundamentalist we must explain; the Constitution too was designed by people. There's nothing wrong with making constitutional amendments, so long as those amendments create more freedom and participatory democracy. But the present proposed changes are cosmetic at best, and manipulative at worst. They are less about changing the way society (provincial and local government) is run than trying to centralise service delivery, and putting our democracy under the mercies of powerful men and their factions.
In a democratic system the tyranny of the majority and legislature (which represents the majority) is something always alive. As Madison noted, "[I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." Unfortunately, the majority of South Africans do not indulge all their jealousy in guarding their liberty, which is why our politics are a harvest for factionalists that are able to manipulate public opinion and rely on political nostalgia. They know the South African public does not make them account for what they say or do.
Democracy has many enemies, some even internal, purporting to be working for it. The Constitution of the country is usually the last stronghold against these enemies. Once you erode, rubbish, and eventually collapse it, you expose the people to political fads, organised lobbies, and the rest of the comedy of errors and murdering cry that usually follow this attitude by bounds.
Madison, Thomas Jefferson, and Alexander Hamilton (Madison's co-author) all came to a conclusion that power must be granted to constitutional courts as a barrier against the tyranny of political assemblies, and means of accountability for the government. The first signs of a government loosing its moors are messing with the Constitution, which naturally leads to disrespect for the rule of law. After that the law of the jungle applies.
After the horrible apartheid years South Africa chose to follow the right route of a Rechtsstaat, i.e. the government that is bound by law with powers limited by the individual rights of its people. This rule of law emphasises the absolute supremacy of law as opposed to arbitrary power, even that of the majority. In this system the independent judiciary interprets and enforces provisions of law, even when it means overturning the acts of a democratically elected legislature.
Section 2 of our Constitution established the supremacy of the constitution above even the government. It 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." You mess with it at a great price. We will, at Cope, resist the temptation to say we told you these people have no respect for the fundamental laws of our country, including the Constitution.
Mphuthumi Ntabeni is editor of http://copetown.org/ and COPE's head of research in the Western Cape legislature
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