THE GOVERNMENT'S PROPOSED REVIEW OF THE CONSTITUTIONAL COURT'S JUDGMENTS

South Africans are understandably perplexed by Minister Jeff Radebe's presentation earlier this week of the discussion paper on the proposed review of the Constitutional Court's judgments. After months of ominous rumbling the ANC volcano produced only an obfuscating - but apparently innocuous - puff of smoke.

The rumblings had, indeed, caused constitutionalists serious concern.

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". Nor should the government's political opponents be able to subvert the popularly elected government by using the courts to "co-govern the country". He later stated baldly that the government wanted to review the powers of the Constitutional Court.

On 18 August ANC Secretary-General Gwede Mantashe charged that the Constitutional Court was being used as an opposition to the government and and cited the Court's Judgment in the Glenister case as an example.

However, the most scathing criticism came at the beginning of September in an article by Adv Ngoako Ramathlodi, the Deputy Minister of Correctional Services.

He claimed that during the constitutional negotiations the ‘regime' had given up elements of political power to the black majority but had immigrated substantial power away from the legislature and the executive and had vested it in the judiciary, Chapter 9 institutions and civil society. As a result, "the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society." White interests consistently challenged government policy in the courts "where the forces against change still hold relative hegemony." 

Last Sunday, ANC Chief Whip Dr Mathole Motshekga, continued the refrain by stating that "certain people" wanted to hand over the powers of parliament and President Zuma to the courts. He added ominously that "amendments to the Constitution were not excluded - but would not interfere with the fundamental rights of South Africans."

During his presentation of the discussion paper, Minister Radebe insisted that it was irresponsible for commentators to interpret these statements as an indication that "the ANC is hell bent on revoking the fundamental rights and freedoms that many had fought and some died for." On the contrary, the Constitution was "an embodiment of the values that the ANC stood and fought for". The ANC-led government (including Adv Ramathlodi?) would "defend these values at all cost, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy."

Everyone should welcome the Minister's renewed commitment to the Constitution. However, there are still some disturbing seismic reverberations.

The Minister claimed that section 16 of Schedule 6 of the Constitution gives him, together with the Judicial service Commission, the authority to rationalise "all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation"..."with a view to establishing a judicial system suited to the requirements of the new Constitution."

Accordingly "the President's comments relating to the review of the powers of the Constitutional Court is consonant with the rationalisation project mandated by the Constitution". In fact, Schedule 6 was clearly intended to deal with transitional arrangements "as soon as possible after the new Constitution took effect."

Also, the proposed review is cast almost entirely within the framework of the need for transformation. Although transformation is quite rightly a central constitutional imperative, it is not the Constitution's only concern.

The Constitution is a balanced document that seeks to protect the fundamental rights of all South Africans and to establish a society that is based on non-racialism, non-sexism, the supremacy of the Constitution and of the rule of law. It is also committed to the establishment of a genuinely democratic system of multiparty government "to ensure accountability, responsiveness and openness."

In fact, the ANC's concerns with the courts do not centre on their transformation record, but rather in their record in consistently striking down unconstitutional laws and conduct. 

Nor is the proposed review concerned with establishing proper balance and separation between the executive, the legislature and the judiciary. As we saw in 2007 both the executive and the legislature answer to the ANC's national elective conferences and not directly to the electorate.

Without any mandate from the voters, delegates at Polokwane initiated the dismissal of the president and adopted the legislative programme that parliament would be required to follow. The only key lever of state power that continues to elude the ANC is the judiciary.

The Review should accordingly be seen within the context of the ANC's long-standing goal in its Strategy & Tactics documents "to strengthen the hold of the democratic movement (i.e. the ANC) over state power, and to transform the state machinery to serve the cause of social transformation. The levers of state power include the legislatures, the executives, the public service, the security forces, the judiciary, parastatals, the public broadcaster, and so on."

"Control by democratic forces means that these institutions should operate on the basis of the precepts of the Constitution (as interpreted by the ANC) ; they should be guided by new doctrines (the ANC's National Democratic Revolution); they should reflect in their composition the demographics of the country (deployed ANC cadres); and they should owe allegiance to the new order (the order established by ANC)." (My italics.)

Minister Radebe's assurances echo similar assurances in the Strategy & Tactics documents in which the ANC commits itself to "the fundamental provisions of the basic law of the land, which accords with its own vision of a democratic and just society." However, it does so "within the context of correcting the historical injustices of apartheid"- i.e. within the framework of the transformation ideology expounded in the National Democratic Revolution (NDR).

It is too early for us to spread our picnic blankets on the slopes of Mount ANC. We should keep our constitutional seismographs handy and get ready to move as soon as there are any signs that the foundations of our new democracy are beginning to shift.

Dave Steward is Executive Director of the FW de Klerk Foundation

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