In the final analysis it is a matter of trust. Should those politicians given a majority mandate in a proportional representation system, in which accountability of parliamentarians is effectively to their party bosses (who hire and fire them), rather than to the voters who elect them, be trusted to uphold our fragile new constitutional democracy?
Or, should this delicate and nuanced task be left to independent judges who have proved themselves appropriately experienced and fit and proper persons for the task and who are not beholden to any party bosses at all?
The way in which the constitution answers the question is neither ambivalent nor equivocal. Quite rightly, the judges are given the ultimate task of upholding the law and the constitution, without fear, favour or prejudice.
The politicians (who do not have any stringent qualification criteria and are deemed fit for election if they are not insane, insolvent or convicted of serious crime) have to be kept in check and the powers they are given to make laws and act as executive in the administration of the country must be balanced against the constitutional imperatives which the people decided should be included in their post-liberation order.
The state, for the first time, is obliged to respect, protect, promote and fulfil the human rights guaranteed in the Bill of Rights which is chapter two of the constitution.
This is an onerous task that lends the necessary legitimacy to the new order.
The way in which the individual citizen, or minority political party, or civil society organisation, is able to see to it that the state does perform its obligations in relation to the delivery and realisation of human rights is, in the end, via the courts.
There are other mechanisms available. The Chapter Nine institutions, in particular the public protector, the SA Human Rights Commission and the auditor-general, all function to promote constitutional democracy.
This is done essentially by keeping those in power true to what the constitution promises and accountable for their conduct and the laws they pass and implement. Maladministration, violations of human rights and financial impropriety can be investigated and corrected by these bodies.
Essential to this checking and balancing process is the implementation of the rule of law, which, together with the constitution, is now regarded as supreme. The courts have been given the power to declare invalid any law and any conduct which is inconsistent with the constitution.
This is a vital cog in the doctrine of constitutionalism which has replaced the doctrine of parliamentary sovereignty which used to hold sway in the apartheid dispensation.
When two million South Africans actively participated in our unique constitution-making process, which began in February 1990 with the unbanning of the liberation movements and culminated in February 1997 when the current constitution became the supreme law of the land, they decided, politicians included, that politicians are not to be trusted with the maintenance of constitutionalism, our new guiding ideology.
The course chosen for the nation was that it would be preferable to abandon the old order in which power was vested in Parliament and courts had somewhat limited powers of review.
Nowadays the constitutionality of all conduct and all laws passed by legislatures and implemented by executive authorities around the land is subject to scrutiny by the courts at the instance of those aggrieved.
If any law or conduct is unable to pass constitutional muster in the opinion of a simple majority of the justices of the Constitutional Court (which has a quorum of eight and a membership of 11) sitting en banc, it is struck down.
Then directions may be given as to the remedial action needed. Parliament is regularly sent back to the drawing board by the Constitutional Court, a process that very seldom occurred in the parliamentary sovereignty system under apartheid.
It is easy to see why our national accord was framed in this way. Politicians are not to be trusted; their interest in power and their desire to remain in office for as long as possible cloud their judgement and threaten the values of accountability, openness and responsiveness to the needs of ordinary people which, by law, ought to inform the constitutional dispensation fashioned to replace and transform the old order. Judges, on the other hand, are not interested in party political power and do not go looking for disputes in which they may involve themselves.
Disputes are taken to them for adjudication. There is a system of appeals that is designed to minimise, if not eliminate, errors.
In constitutional matters the new creation of the constitution, a court in Braamfontein in which 11 green-clad justices have the final say on all constitutional issues, is the final arbiter of disputes concerning the constitutional limits of political power.
This huge step forward for justice means that politicians can no longer do as they please. They are constrained by the principles, values and tenets of the constitution. Not for them the unbridled power of a sovereign parliament.
The bleak experiences of the old dispensation persuaded virtually all politicians and participants in the process, according to which the national accord which underlies the constitution was fashioned, to turn their backs on all-powerful politicians and to make the constitution itself supreme.
Any suggestion that politicians representing “the majority” are supreme is entirely misplaced. More registered voters do not vote than vote with “the majority” in Parliament and many potential voters do not register to vote. Again and again politicians have found themselves on the receiving end of adverse decisions in the Constitutional Court.
Nelson Mandela set a very good example the first time this happened by graciously accepting the decision of the Constitutional Court and taking immediate steps to implement it.
By and large his example has been followed, even when certain elements in the ruling alliance mutter darkly about counter-revolutionary judges and anti-majoritarian tendencies in the courts.
While it is so that the highest court does sit at the crossroads between law and politics, the mandate that the constitution gives to the judiciary is to uphold the law and the constitution, not any transient political policy or agenda.
This means examining questioned laws and conduct by the standards of the constitution and striking them down, should the need to do so arise. The truth is that minorities are protected by the constitution and, in particular, by the Bill of Rights. This is as it should be. South Africa has a history fraught with violence. Any attempt to create a new society, in which the pursuit of human dignity, the achievement of equality and the enjoyment of our various freedoms by all are the foundational values, is doomed to failure if the majority is allowed to lord it over the minorities present in our heterogeneous society.
One of the major difficulties is that the governing alliance has pursued its “national democratic revolution” agenda in parallel with its lip-service to the values of the constitution.
In fact, the revolutionary agenda is aimed at replacing the multiparty democracy under the rule of law that is currently somewhat precariously in place with a one-party state in which the state is subsumed into that one party and hegemonic control of all the levers of power is the new order.
The current dispensation is regarded by the planners and thinkers in the alliance as a stepping stone along the way to the revolutionary victory. Needless to say, checks and balances on the exercise of power fall by the wayside in this intended dispensation.
The tension between the constitution and the tri-partite alliance’s agenda is expressed in public interest litigation aimed at thwarting the revolutionary march toward a one- party dispensation in which there will be political hegemony.
The political way to achieve hegemony is through a 75 percent majority in Parliament.
This is unlikely to happen any time soon. While the constitution is in place, the revolution seems doomed. The truly revolutionary way to achieve hegemony is by overthrowing the constitution by force. No one appears to have much appetite for this.
On the contrary, the ANC has now adopted the National Development Plan, which is largely based on the values of the constitution, not its revolution. How this will play out remains to be seen. The SACP and Cosatu are less enthusiastic about this new departure.
Cape Town is the only city in the country to have adopted the new plan. Somewhat surprisingly, Cape Town is the only city controlled by the opposition in Parliament.
The power of the courts to test the will of the majority against constitutional values is not intended to asphyxiate the majority. It is there as a core element of the new dispensation simply to constrain the majority and to require it to show fealty to the values of the constitution. No more, no less. There can be no “constitutional mandate creep” by the courts if the majority remains true to the constitution.
There can be no, what Professor Daniel Plaatjies calls “juridification of politics” (whatever that may mean), if the majority respects the constraints of the supreme law, as it must. In practice the constitution means what the majority of the Constitutional Court says it means.
This is a legal determination with political ramifications, not the converse. No personal preferences, whether political or judicial, can hold sway if they are inconsistent with the constitution.
The compromise that the constitution embodies gives the judiciary, not the other branches of government, the final say.
The Judicial Service Commission is one of the most dysfunctional institutions of the new order, mainly because it is dominated by a caucus of cadres of the national democratic revolution.
It invariably loses its litigation and often behaves in ways that are constitutionally inexplicable. It should be reformed to rid it of the scourge of its political domination. In the meantime, it is proper that it be kept honest via litigation.
If the “court of politics and general political discourse” (Plaatjies again) regard the constitution as anything other than our supreme law, they are both sorely mistaken as to the nature of constitutionalism and its constraints on political conduct.
There is no need to draw courts into politics if the value systems of all political actors are consonant with those expressed in the constitution. If the ANC has genuinely traded in the national democratic revolution on the new National Development Plan there is hope for constitutionalism in South Africa.
For now, let’s put our trust in the duly appointed judges and in the constitution, together they are our best hope for the future.
n Hoffman SC is with the Institute for Accountability