State must comply with rule of law

Chief Justice Mogoeng Mogoeng. File photo: Thobile Mathonsi

Chief Justice Mogoeng Mogoeng. File photo: Thobile Mathonsi

Published Jul 13, 2015

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South Africa’s constitution is not negotiable, and the government and politicians need to understand that, writes Eusebius McKaiser.

The discussions about the relationship between the executive and the judiciary are unnecessary. To be clear: I don’t think it’s unhealthy to have such discussions and I certainly don’t think we’re on the brink of a constitutional crisis just on account of such tension surfacing. But it is unnecessary because the remarks from politicians who have occasioned the debate are based on a deliberate misunderstanding of the meaning of constitutional supremacy.

It’s worth thinking through the fundamental structure of the constitutional democracy we adopted in the 1990s, to get a sense of why most of the politicians’ gripes are misplaced.

Constitutions all over the world reflect the political and historical context in which founding parents adopt a particular country’s constitution. It is little wonder, of course, in the context of American history that the US constitution had to be a careful negotiation between the powers of a federal government and each individual state.

There is no such thing as an objectively perfect constitutional arrangement. Constitutions are responses to the peculiar moments in which they are adopted for purposes suitable to the negotiators’ tug-of-war.

The better ones are constitutions that are not only historically contingent, but craft a vision of a future society that is desirable and feasible, even if hard to achieve. Our constitution has both these features.

First, precisely because we never want to return to a past in which Parliament and the executive should discriminate arbitrarily against any individual or community, we chose to make the government subservient to the constitution. The constitution is supreme and not even politicians or the government are above the constitution.

That is what we mean by “the principle of constitutional supremacy” as opposed to the decades of National Party rule, and ruin, which was founded on the shaky idea that Parliament was sovereign and all laws were inferior to the will of racist politicians who could willy-nilly change laws and policies with not much constitutional constraint.

In this sense, our constitution, like many around the world, captured our anxiety as a society at the time we adopted the constitution. We chose a “never again” approach, essentially enshrining a healthy anxiety in our constitution by saying, “Never again shall we allow government to have unfettered powers that could be abused”. Thank goodness we opted for this principle, otherwise millions of South Africans would be at the mercy of self-interested politicians.

I prefer a South Africa in which the poor in particular have some constitutional protection against any government that can’t be guaranteed of being inherently caring and responsive.

Our constitution is also future-oriented, however, and not just a reflection of the moments in our history that gave birth to it.

We chose, for example, to include legally enforceable socio-economic rights in our constitution. This is controversial stuff in both jurisprudence and political theory because some old-school democrats regard the mere inclusion of these second-generation rights in our constitution as a design flaw; as an encroachment on the roles and powers of other branches of the government. But our founding parents, many still in the government, were not being silly or hasty when they made this choice. Precisely because we wanted the poor black majority of South Africans to have their dignity restored, and to flourish, we wanted any future government to be legally compelled to care about the progressive realisation of rights to goods such as housing, health care and education.

It pains me, to be honest, to write a column that is something of an idiot’s guide to the meaning, and historical basis, of constitutional supremacy.

Because one would have thought that older politicians who were at the Convention for a Democratic South Africa, and who experienced an uncaring apartheid state that flouted the rule of law routinely, would not need a younger South African to recount knowledge that runs in our blood.

And yet the silly claims of judicial “overreach” from tri-partite politicians are based on obfuscation about the meaning of constitutional supremacy which they themselves signed up for. The rules really are not vague, unjustified or in need of a special meeting to make sense of.

Our Chief Justice, Mogoeng Mogoeng, should not have to meet with the government to discuss whether or not the principle of constitutional supremacy and its operating mechanism, the rule of law, are still safe in our land.

The state must just comply with the rule of law, and reduce the gap between constitutional vision and patchy performance in the state. This doesn’t mean you can’t criticise the courts when they hand down judgments. You can. That’s not unhealthy nor a constitutional crisis.

But if your challenges to court judgments cannot be sustained all the way to the constitutional court, then you have no leg to stand on. Unless, of course, you think being law abiding isn’t compulsory.

* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma.

** The views expressed here are not necessarily those of Independent Media.

The Star

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