By Pierre De Vos
The following paragraphs are extracted from a comment published in the June 2012 issue of the Public Law Review.*
Former Chinese Premier Zhou Enlai is reported to have told then American President Richard Nixon in 1972 that it was “too early” to assess the implications of the French revolution of 1789. It might similarly be too early to say whether the move by the South African government to have the judgments of South Africa’s Constitutional Court (the highest court in all constitutional matters) as well as the Supreme Court of Appeal (SCA, the second highest court in South Africa and the highest court in non-constitutional matters) assessed, represents a full-frontal attack by the current government on the South African judiciary, or whether the move to assess the two most important courts in South Africa stems from a more benign impulse.
When, towards the end of March 2012, the government finally issued the terms of reference of the proposed assessment and invited “competent institutions” to submit proposals to the Department of Justice to undertake the proposed assessment, many legal academics and commentators expressed surprise at the seemingly benign nature of the work expected to be done. However, given the political context within which the assessment was initially announced and given the tensions which – inevitably, one is tempted to say – have emerged between a judiciary empowered to review and set aside legislation and acts by the President and other members of the executive, on the one hand, and a dominant political party whose stated intention is to establish itself as the “strategic centre of power” by deploying its members to state institutions and all other centres of political influence and power to further what it calls the “National Democratic Revolution”, on the other, suspicions about the motive for this assessment linger on. Whether the suspicions are valid or not, it is important to take a step back to sketch the political events which led up to the announcement of this assessment before evaluating the terms of reference announced by the government in order to consider any possible threats to the independence of the South African judiciary and the constitutional project as a whole.
ALLEGATIONS OF CORRUPTION, POLITICAL SURVIVAL AND THE RUN–UP TO AN ASSESSMENT OF JUDICIARY
South Africa’s President, who is usually the leader of the majority party in the lower house of Parliament (the house which also elects the President after a general election), acts as both the head of state and as head of the executive, and as such has a powerful constitutional and role to play in the South African system of government. The President appoints and can also sack members of his or her Cabinet and provides strategic leadership for the government of the day, much like a Prime Minister in the Australian system. South Africa’s current President, Jacob Zuma, famously faced corruption charges before his elevation to the presidency after his financial advisor was convicted of soliciting a bribe from an arms company on his behalf. These charges were rather controversially dropped by the Prosecuting Authority shortly before Zuma became President of the country after the national elections in 2009. The government had also fired the head of the Prosecuting Authority and had appointed a new head, widely seen to be politically pliant. Commentators at the time speculated that this was done to protect President Zuma from possible prosecution in the future. It is important to note that the decision to drop the corruption charges against President Zuma has been legally challenged by the opposition Democratic Alliance, while the same opposition party has also challenged the decision by President Zuma to appoint a seemingly pliant political ally as the head of the Prosecuting Authority.
The Constitutional Court has recently also ruled against the executive and the legislature in important cases in which the authority of the governing party itself seemed to have been at stake. Thus, at the end of 2008, a majority of judges of the Constitutional Court ruled that the Constitution placed a positive duty on the state to create an independent corruption fighting unit free from political influence and that the existing corruption fighting unit was insufficiently independent. Moreover, a unanimous Constitutional Court ruled last year that the provision on which President Zuma had relied to try and extend the term of office of the Chief Justice was unconstitutional and hence that the purported extension was invalid. It therefore did not come as a surprise when the Secretary General of the African National Congress (ANC), Gwede Mantashe, complained to a Johannesburg newspaper in August 2011 that the judiciary was arresting the functioning of government and that a perception has arisen that “the judiciary is actually consolidating opposition to government”.
PROPOSALS TO ASSESS THE CONSTITUTIONAL COURT AND THE SCA
Given these extraordinary set of circumstances, it is not surprising that concerns were immediately raised when the government announced in November 2011 that an “assessment on the transformation of the judicial system and the role of the judiciary in a developmental state” will be carried out by a “reputable research institution”. To that end, the Cabinet agreed that:
Appropriate mechanisms [must] be developed to facilitate for [sic] regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.
This statement raised fears that the assessment would be used to put pressure on the judiciary – especially the Constitutional Court – to pursue “common transformative goals”, however these goals would be defined by the government of the day. These fears were compounded by two events in February 2012. First, as the SCA was considering whether it was appropriate to hear a case to review the dropping of criminal charges against the President, President Zuma said in an interview in the Sowetan newspaper: “We don’t want to review the Constitutional Court, we want to review its powers.”
Secondly, the government published a discussion document on the transformation of the judiciary in which it laudably affirmed its respect for the independence of the judiciary and the notion of the separation of powers, but worryingly seemed to question the wisdom of retaining a distinctly adversarial system of judicial review. This antagonism towards an adversarial kind of judicial review expressed in the government’s discussion document seemed to be focused primarily on cases where the courts were not enforcing social and economic rights and where the judicial review of government action would signal a failure on the part of the judiciary to “cooperate” with the other arms of government in pursuit of unnamed constitutional values or goals. The discussion document, seemed to attempt to marry what could be considered a consensual model of separation of powers with a model of separation of powers that retains some form of power for the independent judiciary to review and set aside legislation and acts by the legislature if these infringed on the Bill of Rights or if they failed to comply with the principle of legality. It is not clear how one could have both a consensual model of separation of powers and an independent judiciary that acts as a true check on the exercise of power by the other branches of government to uphold the supremacy of the Constitution – instead of Parliament.
The three branches of the state, “are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa”. Despite the fact that the discussion document contained reassuring affirmations of the need for an independent judiciary to enforce the provisions of the Bill of Rights, there are passages in the document that suggest the government might want as an ultimate goal to water down the independence of the judiciary by creating mechanisms that will help to break down the strict separation of powers between the judiciary and the other two branches of government. The document thus makes the following extraordinary claim:
Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in unison, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state.
Of course, if the three branches were to act in complete unison as an integrated singular unit “for the common good” (a common good defined by those politicians who happen to be in power), it would be difficult to see how one branch of that government would consistently declare invalid the acts of the other branches of the government with which it works in unison. At best the branches will debate the constitutional issues at stake beforehand and the two political branches will alter course to ensure compliance with the Constitution. At worst the two political branches will be able to prevail politically on the judiciary to re-interpret the provisions of the Constitution to give the legislature and executive more leeway to do as they please.
* These extracted paragraphs have been reproduced without footnotes. To read the full comment, see (2012) 23 PLR 69.