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White House press secretary Jay Carney spent much of the past two weeks doing damage control after President Barack Obama’s comments about the role of the Supreme Court.
Obama clearly recognises how much would be at stake if the Supreme Court overturned the health-care reform legislation he has spearheaded.
If passed, it will be defining for his first term as president. The stakes are especially high because this is an election year.
Obama hardly wants to reach the height of his election campaign embattled because the Supreme Court has overturned his health-care law.
So the pressure was starting to show when Obama himself weighed in on the debate just days after oral argument ended.
He was certain, he said, that the Supreme Court would uphold the health-care reform law because not to do so would be “unprecedented” and a display of “judicial activism” which would result in “unelected judges” overturning legislation that was passed by the people’s duly elected representatives.
In other words, the Supreme Court would be overreaching.
Critics pounced on this immediately. Obama was trying to intimidate the court, they said. Given the multiple layers of constraint on Obama’s powers, his comments are not quite as potent or toxic as when ANC secretary-general Gwede Mantashe, President Jacob Zuma or senior ruling party politicians make attacks on our judiciary by questioning the legitimacy of the Constitutional Court judges or, indeed, of the constitution itself. Our situation remains a little too young and fragile for us not to be concerned when judges are labelled “counter-revolutionary” by powerful politicians.
Yet, what Obama’s comments indicate is the difficult relationship between the executive branch of government and the judiciary. The power to declare laws unconstitutional automatically creates a tension; whether one calls that an unhealthy or creative tension matters little.
And so, as the terms of reference for the “review” of the Concourt and the Supreme Court of Appeal have been made public by the government, the debate about the powers of the court and the role of the constitution is both relevant and necessary.
Sometimes it helps to jog our collective memory as to the history of our constitution-making process and how exactly we arrived at the constitution we have. For it was not simply cut and pasted or plucked from the air.
This is precisely what Deputy Chief Justice Dikgang Moseneke did when he delivered the Phillip A Hart lecture at Georgetown Law Centre in Washington, DC last week.
The Hart lectureship is awarded to a distinguished individual who lived the values of former senator Hart, who was described as the “conscience of the US Senate during the days of segregation”. He was ahead of his time, advocating for equal rights, fair labour laws and even “green” issues.
Justice Moseneke’s address was an eloquent and timely tour de force on the constitution-making process in SA, the major achievements of the Concourt and the challenges for the future. He was generally upbeat, but careful to remind us of the journey we have travelled from the heart of apartheid darkness.
Marlowe’s words in Joseph Conrad’s Heart of Darkness haunt us and we are reminded of “the horror” of apartheid and of today’s persistent poverty and inequality.
The constitution was at its heart a participatory process, one in which ordinary citizens were able to make substantial input via oral and written submissions.
We can be rightly proud of that.
Does that mean the constitution can never be changed?
Does it mean, as politicians have argued, that we are forever “stuck” with certain clauses, which may well become archaic or unsuitable to a modern society or one grappling with the hard questions of transformation?
The answer must be no.
Yet, the will of the people (which is what our constitution represents) can also not simply be amended at the whim of opportunistic politicians. For its purpose is to transcend petty politics and power struggles even while the constitution and the Concourt stand in the midst of the mediation of power.
S v Zuma and S v Shaik are examples of that. But Justice Moseneke also reminded the audience that the process was internally driven and that our constitution is at heart a highly transformative document.
One cannot disagree that the Concourt, in its vision of a transformed society, has taken a decidedly pro-poor stance, whether in Grootboom, Treatment Action Campaign or on social grants. Indeed, one can almost predict that the terms of reference which provide for the review over 18 months will do much to silence the critics of the court.
Those occupying the “middle ground” of the ANC have done a decent job in couching the terms of reference in such a way that much of the heat will have been taken out of the debate.
Yet we cannot go back. Attacks have been made on the judiciary and the Zuma administration has installed a chief justice who has neither the intellectual heft nor the gravitas to be in the position.
That might well turn out to be the biggest and most dangerous consequence of the Zuma administration when we look back in years to come. In addition, it means that we all ought to be mindful of the new appointments made to the Concourt. For Chief Justice Mogoeng Mogoeng’s appointment happened on all our watch.
The transformative element and vision of the constitution naturally put the judiciary in a place of conflict with the executive given what Justice Moseneke rightly describes as the strong focus the constitution has on institutional integrity.
The Glenister case provided a prime example of the court upholding the right of citizens to an independent corruption-fighting institution.
Yet, while one could be moved by Justice Moseneke’s description of our best side – because his tour through the history of our constitution-making process was a vivid reminder of what we as South Africans can do when we work together and put our collective interest before either narrow personal or political interest – he sounded a few warning bells.
In a sense they were obvious to the (two) South Africans in the audience, yet needed to be articulated fully.
The honeymoon is over, Justice Moseneke said. For the powers that be sometimes have a misunderstanding of the role of the courts and the constitution.
Some of the attacks on the judiciary have, in his view, been “mischievous” and “opportunistic”.
He also expressed concern over the implementation of court orders that have been patchy – not entirely bad but patchy, like much of governance in SA.
Perhaps a challenge Justice Moseneke omitted to mention directly was inequality.
He mentioned the “legitimacy dilemma” that might arise should court orders not be implemented and should the court fail to do its job of striking down unconstitutional laws or compelling powerful actors to act constitutionally.
But the key question surely is, if the constitution was amended or scrapped tomorrow, who would march in its defence? For the greater the levels of inequality, the greater the need is for ordinary citizens to focus on survival. Joining the dots between poor governance, corrupt local government, “tenderpreneurship” and cronyism often then becomes a luxury.
The constitution has been a protector of the vulnerable; the case law will bear out this assertion. This message must be popularised.
If the politicians will not do it because it is too uncomfortable, we need to think of creative ways of doing so and ensuring that access to justice and the assertion of rights becomes a rallying cry. It is in this way alone – when it is defended by the people themselves – that our constitution, so admired across the world and a product of the Struggle – will stand the test of time.
n February heads Idasa’s SA governance programme. She is a Reagan-Fascell Fellow at the National Endowment for Democracy in Washington, DC until August.