The dividing line is the Constitution

Over the past 15 years progressive academics have regularly criticised the Constitutional Court in harsh terms. Writing in academic journals, these academics have argued that the Court has not been sufficiently bold in interpreting and enforcing the provisions of the Constitution and in striking down legislation and acts by the executive, writes Professor Pierre de Vos.

Instead of boldly enforcing the transformative provisions contained in the Constitution, so it is said, the court has been far too respectful of the principle of the separation of powers and has too often failed to come to the assistance of the most vulnerable members of society in cases where this would have required it to interfere too drastily with the powers of the legislature or the executive

It is therefore ironic that President Jacob Zuma recently expressed concerns about the manner in which the judiciary allegedly “interferes” with the work of the executive and with the judicialisation of essentially political disputes.

President Zuma – quite correctly, in my view — stated that “the executive, as elected officials, has the sole discretion to decide policies for Government.” But then he proceeded to state that although he respected the powers and role conferred by our constitution on the legislature and the judiciary, the “executive must be allowed to conduct its administration and policy-making work as freely as it possibly can”.

President Zuma also warned that the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote and complained that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections.

These remarks are similar to remarks made a month or two ago by Secretary General of the ANC Gwede Mantashe. To those who follow the work of the courts closely and have a fair grasp of the nature of our constitutional democracy and the principle of the separation of powers, these remarks seem at best uninformed and simplistic, and at worst informed by a lack of respect for the constitutional system which the ANC had a decisive hand in establishing in South Africa.

In a constitutional democracy, all law as well as all policy devised and implemented by public bodies (including the Presidency), is only valid if it is compliant with the provisions of the Constitution. While the courts cannot devise policy, they can test the policies devised by the executive against the Constitution and can declare unconstitutional those policies that do not conform to the Constitution.

In a constitutional democracy, organisations and individuals will often oppose the adoption of legislation or implementation of policies with which they disagree. Because the majority party forms the government, it would be free to ignore any criticism and proceed with the chosen path, despite opposition from civil society groups or opposition parties.

If the policies or actions of the executive comply with the Constitution that would be the end of the matter: the majority party would get its way – despite the opposition from other quarters.

But where the governing party ignores sound advice from lawyers, opposition parties and activists about the possible unconstitutionality of the policies or legislation adopted by the government, that government really has no leg to stand on when it complains about these policies or legislation being challenged in court and declared unconstitutional.

It is true that the government has suffered several embarrassing defeats in our courts over recent years.

First, the Constitutional Court found that the Hawks were not sufficiently independent and that our Constitution required the creation of a truly independent corruption fighting unit.

Then the Constitutional Court found that the legal provision, which President Zuma relied upon to try and extend the term of office of the Chief Justice, was unconstitutional.

But in both cases the government was warned that the action taken might be unconstitutional: it just decided – unwisely as it turns out – not to heed the warnings. When President Zuma and other ANC leaders therefore complain about others wishing to co-govern the country, the complaint rings hollow and it sounds as if the President is either completely misinformed about the nature of a constitutional democracy or is incapable of admitting that he was provided with very bad legal advice.

It could then easily sound as if the President wants to blame opposition parties and civil society groups for mistakes made by the government.

It is important to note that not only the judiciary, but also the legislature and the executive, have the obligation to respect and protect the Constitution. Where the other two branches of government take this obligation seriously, it would make every effort to act in accordance with the Constitution. When it does so, it would not face many challenges in court and the situation complained of by the President would not arise.

(Prof Pierre de Vos is Claude Leon Foundation Chair in Constitutional Governance and Deputy Dean of the Department of Public Law at the University of Cape Town)