Photo: The Presidency of the Republic of South Africa South Africa is about to experience another unhealthy public spat between the government and civil society.
Government is to review the powers of the constitutional court, and to assess whether the court has, on balance, played an effective role in transforming society.
This has already made many lawyers and civil society organisations nervous and ready to "defend the constitution". Their concerns will no doubt be voiced in evocative hysteria, since they see the constitution, and the constitutional court, as being under siege. Some already argue that "democracy itself" is under threat.
The government's ambiguous relationship with civil society makes its attitude, in turn, unpredictable. In the debate on the various versions of the Protection of State Information Bill - as with the public submissions about the suitability of Justice Mogoeng Mogoeng for the position of Chief Justice - the government paid lip service to the ideals of deliberative and participatory democracy. It gave the public a hearing or three, but did not listen, much less actively engage several substantive, evidence-based submissions. So we can expect at least some politicians to display the usual disdain for civil society and oscillate between unjustified swipes at the entire judiciary as "counter-revolutionary" and claims that unnamed constitutional court judges are "anti-ANC and anti-government."
Between civil society hysteria and government arrogance, a healthy debate about the transformation of the judiciary, the role of the constitutional court, and the constitutional jurisprudence that has evolved over the past 16 years, will be elbowed out of the debating chamber.
It is worth, however, framing the debate as it ought to unfold rather than accepting a probably inevitable "civil society versus government" stand-off .
Government's fear of judicial review
Neither the real motives for the review, nor what precisely it will set out to achieve, are yet clear.
But there are two main possibilities. One is that the government sincerely suspects - and wants to test its suspicion - that the constitutional court's judgments are anti-transformation in the sense that the court's jurisprudence has, on balance, undermined the achievement of substantive equality and social justice. A second is that the government feels that the court's judicial review powers hamper democratic governance.
Close and honest examination of the brief history of the constitutional court will not corroborate the first possibility. The court has taken the constitution's commitment to social justice and breathed legal and practical life into its provisions. The most obvious evidence of this is in respect of socio-economic rights: landmark cases like Treatment Action Campaign and Grootboom saw the court reminding the Executive of its obligation to progressively realise socioeconomic rights, including rights to health services and rights to housing.
Could it possibly be anti-poor or anti-transformation to demand a rational public health response to HIV-Aids? And demanding the government prove its fiscal inability to house the destitute is perhaps bad news for uncaring politicians, but clear evidence of a progressive jurisprudence.
Ironically, a stronger legal criticism of the court might be that, at times, it is too activist or too realist in its orientation. That may or may not be a good thing, but it certainly makes nonsense of the claim that the court is an institution that is "anti-transformation".
It is more likely, in reality, that the government is irritated with the general review of Executive decisions in cases where those government decisions appear to be political rather than matters of immediate human rights concern. President Jacob Zuma must have had the Glenister judgment in mind when he recently expressed the view that sometimes minority judgments appear to display better logic than majority ones: his government hated being told that the design of the Hawks was so deeply flawed that it was not a constitutionally sound replacement for the Scorpions. The court went further, and partially outlined the features an anti-corruption unit would need if it was to be truly independent of political power. The features it identified included fixed or non-renewable appointments of senior managers, and accountability lines that do not include ministerial clusters.
This judicial direction would have been seen by some in the Cabinet as a violation of separation of powers. Add to this the more recent decision by the court to declare invalid Zuma's proposal to extend the term of former Chief Justice Sandile Ngcobo, and it is possible to extrapolate to the beginnings of a political desire to "review" the constitutional court's power of judicial review.
This raises the question: is the government right to bemoan the authority vested in the constitutional court to review legislation and government policy? There are two reasons why the answer is "no".
First, all of the constitutional court's judgments have a bearing on human rights. None pertain to government business that could, reasonably, be described as political, but not of a human rights bent. Both how we should deal with corruption, and how we decide who the head of the constitutional court is, are issues with a direct bearing on the quality of our democracy and, ultimately, on the state's capacity to bring about a socially just society.
Second, and perhaps more fundamentally, the very definition of "constitutional supremacy" is that the constitution is supreme and even Parliament is legally inferior. The constitutional court, in turn, is the institution mandated, through the constitution itself, to ensure that the constitution is respected and promoted. To reduce or to eliminate the ability of the constitutional court to review Executive decisions and actions would be to undermine or even banish the very idea of constitutional supremacy.
This is not inherently bad.
But there are good reasons why we should not. Not every Parliament and every Executive will be politically or morally fit for purpose. We know this from the abuse of parliamentary sovereignty routinely displayed by the apartheid government. It is because human beings are fallible that we chose to enshrine into our new society the principle of constitutional supremacy, so that we may "never again" experience state designed oppression. No one is arguing that a majority-black government will become as heinous as a racist, white government. But institutions are designed with the vagaries of human nature in mind, not on the basis of assuming the best of people.
It would therefore be a political blunder to forget the recent historic reasons why the ANC and its allies went into the Codesa negotiations committed to replacing parliamentary sovereignty for constitutional supremacy.
The way forward
It is important to recognise that debating the role of the constitutional court, and assessing its jurisprudence, should not give us sleepless nights. Some civil society organisations charge that the constitution, and the constitutional court, is under threat. This is a hysterical reaction to the government's decision to review the court's powers and role.
It is not inherently anti-democratic to hit the pause button after 16 years and ask: "How is constitutional supremacy working for us?"
Even if the motive behind this government decision is politically self-serving, it would still not follow that we are marching towards a constitutional crisis, one that demands of us to be prepared to die for constitutional democracy. That sort of tone is not justified; it is also a huge strategic misstep, because it needlessly alienates many in the government who could otherwise be swayed by the obviously persuasive reasons why the status quo should not be changed. A tonal shift by opponents of the review would be helpful, not only because it is appropriate, but also because it is strategically more useful than shouting from the rooftops. The extent of civil society's misreading of the proposed review is vividly demonstrated by its claims that democracy is at stake, as if the only model of democracy is constitutional democracy.
It is also important to ensure that the government's bluff is called as this debate unfolds: the desire to have a more transformed judiciary -in which more people have access to the courts; legal aid works for those in need of accessing justice; the legal administrative apparatus is more effective; the Judicial Service Commission sorts out its continuous woes - should not be conflated with a review, specifically, of the constitutional court.
There are legitimate broader issues about the transformation of the judiciary that require a self-contained conversation. The need for that conversation does not lend credence to possibly spurious attempts to undermine the principle of constitutional supremacy.
Time will tell whether the government succeeds in conflating these issues. An hysterical response from civil society will only help it to get away with that conflation. A carefully framed debate is desperately needed. Let the minister of justice bring it on.
McKaiser is a political analyst at the Wits University Centre for Ethics. Follow him on Twitter @eusebius
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