Karthy Govender
President Nelson Mandela signed the Constitution of the Republic of South Africa 1996 into effect on December 10, 1996, at Sharpeville. He brought into effect, as he put it, “a text which embodies our nation’s highest aspirations”.
The symbolism of the choice of venue was lost on no one. The president was acknowledging an ineradicable nexus between the sacrifices of those that fought against apartheid and the new Constitution which embodied principles on which an open and democratic society, based on human dignity, equality and freedom, was to be created. Respect for the values and foundational principles would ensure that the sacrifices of so many would not be in vain.
The negotiations leading up to the adoption of the Constitution were fractious and fraught with contestation. This was to be expected as the constitutional drafting enterprise was concerned with no less a task than transforming a racist oligarchy into a constitutional democracy. However, on one foundational principle, there was widespread agreement – we were to have a constitutional democracy based on the supremacy of the Constitution protected by an independent judiciary. In the First Certification case, the Constitutional Court referred to this as one of the basic structures and premises of the new Constitution.
The term “basic structures” of the Constitution was refined by the Indian Supreme Court to curb the abuses of power by then prime minister Indira Gandhi. The basic structures were deemed so important to a viable constitutional democracy that they could not be amended, even by a 100% majority of the legislative bodies. The rationale is if any of the basic structures are removed, then the country ceases to be a constitutional democracy.
The supremacy of the Constitution protected by an independent judiciary is unequivocally a basic structure.
While a constitutional democracy is by no means the perfect vehicle to regulate the affairs of the state, it is the best we have been able to devise to achieve the objective of effective, accountable and transparent governance.
Inherent to the supremacy of the Constitution and the independence of the judiciary is the imperative contained in section 165(5) of our Constitution that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”. Respecting court orders is one aspect of the solemn compact that we, the people, enter into for the privilege of living in a constitutional democracy.
If there is widespread non-compliance with the core responsibility, the Constitution Mandela signed into effect would be abrogated and something sinister, from a constitutional perspective, would be brought into effect by stealth. It is for this reason that the decision by some not to respect the rulings of the Constitutional Court and honour the subpoena to appear before the Zondo Commission should be of profound concern to all.
The most viable and effective constitutions achieve an equilibrium between the granting of adequate power to elected rulers to function effectively while having checks and balances to ensure power is not abused.
The lessons of humankind are that granting unconstrained or uncontrolled power inevitably leads to the abuse of power. The rule of law requires those exercising public power to act in accordance with the pre-determined requirements stipulated in the Constitution. The responsibility of determining whether the power is lawfully exercised vests in an independent judiciary. It does not vest in the individuals exercising the power or in those in respect of whom the power is exercised to determine whether the actions are lawful. That is what happens in a society where the rule of law ceases to exist.
The functioning of the judicial process is different from that of other spheres of government. Judges do not have their own police force to enforce their rulings and are dependent on the executive and administration to do so. Judges do not request specific cases be brought to them for adjudication.
Cases come before them because persons require justiciable issues to be determined competently. Judges hear witnesses and listen to argument in open court and speak through the coherence and persuasiveness of their rulings and judgments. They are obliged to justify their decisions based on law and factual findings they make.
An appeal lies with higher courts and finally to Constitutional Court which comprises 11 justices. The objective of having 11 is to ensure that the widest spectrum of views and opinions are brought to bear on a matter.
Thus, particularly when the court speaks with one voice as it did with the Zondo Commission subpoena application, it is sending an unequivocal message that its order is indisputable.
Non-compliance in the circumstances may amount to contempt of court, a violation of section 165(5) of the Constitution and a deliberate erosion of one of the basic structures of our constitutional order.
This should have been obvious to most, particularly to those who have taken an oath to uphold the Constitution. All presidents undertake to be faithful to the Republic of South Africa and to “obey, observe, uphold and maintain the Constitution”.
From the text of the oath and the fact that we continue to remunerate them after they have left office, it can be assumed that this oath is not just applicable when the incumbent is in office. This is a sincere promise by a president to be faithful to the Constitution for all time.
At one level, it is easy to be demoralised by the allegations and revelations of corruption, maladministration and sheer sloth being revealed at the Zondo Commission. While oversight by the political bodies such as the Parliamentary portfolio committees during this period appeared to be illusionary, cynical and partisan, the other key components of a constitutional democracy held firm.
A vibrant civil society, a free press, and independent courts allowed us to lift the veil of secrecy and reveal this very bleak picture.
As a country, we have the option of holding accountable those who are alleged to have plundered our country, and safeguarding and reinforcing the institutions and organs of civil society against the abuses of power.
It is vital for the Zondo Commission to function effectively and complete its task, as this would enable us, as a nation, to determine what needs to be done to ensure that state capture never occurs again.
* Govender is a retired professor of Law (UKZN) and serves on the SA Law Reform Commission and the Press Council of SA. He is a senior arbitrator with the SALGBC. He writes in his personal capacity.
** The views expressed here are not necessarily those of Independent Media.