You have to feel sorry for the minister of justice and constitutional development, Jeff Radebe. It has become quite clear in the past two months that there has been a shift inside the ruling African National Congress (ANC) away from the fiery, adversarial, rhetorical attacks on the judiciary, and the Constitutional Court in particular.

References to judges as "counter-revolutionary", accusations that some constitutional court judges are "anti-ANC" and confusing wording from President Jacob Zuma himself - to the effect that the court's powers might be reviewed - created a picture of a government hell-bent on tinkering with constitutional supremacy, and perhaps even judicial independence. This was music to the critical ears of civil society organisations that then had all the evidence that the beloved constitution is under threat from erstwhile liberation heroes.

But, it has now turned out to be much ado about nothing. And it is the minister of justice who is left to pretend, on behalf of his political colleagues, that all along their fiery rhetoric was misunderstood. In fact, all the government really wanted to do was to have a chat with civil society about the role of the Constitutional Court - and now also the Supreme Court of Appeal - about how these courts' judgments have contributed (or not) to social transformation. And that is a surely innocuous exercise at worst, and at best a very useful stock-taking exercise that may well help the courts be more effective in playing their part in transforming society. No one can be opposed to that, surely?

This shift in tone and focus emerged this week with the announcement of the terms of reference for the evaluation of the two highest courts in the land: the Constitutional Court (which has the final say on all constitutional matters), and the Supreme Court of Appeal (which has the final say on all non-constitutional matters.) No doubt civil society organisation with a constitutional bent, as well activist journalists, will struggle to pen a dramatic story about the terms of reference - they really are, for the most part, innocuous. Weaknesses in the detail do exist, but these weaknesses are merely a reflection of the fact that instead of simply abolishing the exercise and losing face, government is insisting on continuing with the exercise, long after those who are irritated with the judicial review powers of the courts have lost the political argument inside the party.

It is fitting nevertheless to have a closer look at these terms of reference and ask whether the exercise of evaluating the courts' jurisprudence can still be fruitful.

Is the constitution a lived document?

The most important aim of this evaluation exercise is to examine the evolution and impact of socio-economic rights jurisprudence. Government wants to know what impact cases involving socio-economic rights have had on eradicating poverty, reducing inequality and enhancing human dignity.

This is a worthwhile question to pose. After all, if the constitution is meant to be a living document, one that makes a material difference to people's lives, then it is not good enough that it is a document that we can brag about as being exemplary on paper but not in reality.

Furthermore, a key feature of our socio-economic rights provisions is that they are justiciable: in other words, the rights to housing, education, health and so on are legally enforceable against the state. In places like India, by contrast, they are often interpreted as political directives rather than strictly legally enforceable laws, and it usually requires fancy judicial activism to have socio-economic rights enforced against the state. In South Africa we explicitly chose to codify these rights, against the historic backdrop of the memory of deprivation. Our constitutional attitude was, "Never again shall citizens be at the mercy of political will, but will now have constitutionally guaranteed access to socio-economic goods".

Given these historical facts about how and why socio-economic rights feature at all in our constitution, it is therefore fitting to ask what impact socio-economic rights jurisprudence actually has on the well-being of citizens.

Administrative blockages to social justice

The terms of reference also do well to highlight administrative impediments to the judiciary's ability to help society transform. In particular, it asks researchers to investigate whether, and if so, to what extent, the cost of litigation is an impediment to accessing justice.

It also draws attention to the fact that (but for very rare circumstances) ordinary citizens are not granted direct access to the Constitutional Court. It has been known for years that there are broader challenges within the judiciary, and access to the judicial system is on the top of that list. It is therefore appropriate that the minister is placing a research spot-light on this challenge in order to pick the brains of legal experts about how this very serious issue might yet be tackled decisively.

Equally, there has often been debate among human rights lawyers about whether or not the Constitutional Court takes on a sufficient number of cases annually, or whether they have room for a heavier workload. One hopes, therefore, that researchers will understand the reference to "direct access" broadly - not just asking literally whether the rules and habits of the court might be relaxed to allow for more cases to be heard, but asking also whether the speed with which cases are settled are a fair reflection of the legal and administrative complexities the judges have to negotiate. It might, of course, turn out that the status quo is fair, that judges work hard enough under the circumstances they face, but that is precisely the point of an evaluative exercise: to probe and assess what is currently happening.

If the exercise merely achieves all of this - closely examining the extent to which judgments have had a real impact on social transformation, and looking in some detail at administrative hurdles to social justice - then insights learned could be acted upon, without these being necessarily compulsory for judges to implement (since judicial independence demands, of course, that a critical distance be kept from the work of the courts).

The danger of scope-creep

However, the most serious weakness is that the scope of the terms of reference is too big. There is a requirement, for example, that "the capacity of the state" be evaluated to determine its ability to comply with judgments. That is too gigantic for a couple of legal or even lego-political analysts or academics to undertake looking closely at jurisprudence, all within an 18 month research period.

It is arguably also not the place of legal researches to be looking at this issue: questions about governance, fiscal constraint, fiscal policy, and so on, lie at the heart of the entire government programme of delivering on that much punted promise, "A better life for all". In effect, this evaluation exercise, if it is conducted strictly in accordance with the letter and spirit of the terms of reference, would take more than 18 months to complete, since the question of state capacity is a massive technical, and ideologically complex, issue. One wonders why it was included at all, even if it is true that state capacity is an obvious constraint on complying with a judgment. The fact that the government must comply with a judgment does not mean that the researchers are best placed to closely scrutinise state capacity.

Besides, our judges have been very fair, as non-governance experts, assessing what is placed before them, rather than making wild assumptions about state capacity. In cases like Minister of Health v Treatment Action Campaign, it found against government on the basis of facts placed and proven before it. In Mazibuko and Others v City of Joburg, it found in favour of the state, on the basis that the City of Joburg had proven it did all it could with available resources.

If anything, in cases like Mazibuko, many activists felt the court was too lenient on government. In either event, researchers who take on this task of evaluating our courts might have a scope-creep problem because the terms of reference are too wide. The research output requirements should have focused more pointedly on the court's jurisprudence, so that researchers are not potentially hamstrung by deeper complexities about the state of the state. The state of the state matters, but that's an issue that that should be engaged elsewhere, and certainly not primarily within the department of justice and constitutional development.

A useful, if unnecessary, exercise

Neither judicial independence, nor constitutional supremacy, will be reviewed - the terms of reference make this abundantly clear. Separation of powers is not under threat either. So the basic foundations of liberal democracy that we have designed and chosen as a replacement for white minority rule are safe, at least insofar as there were fears among some in civil society that this assessment exercise will do the opposite.

However, it is clear that although this exercise could be useful, it is not necessary. It is being undertaken, in the end, to ensure politicians who do not like the powers of our judiciary feel like a compromise had been reached with progressive voices. In reality, the progressive voices within the ruling party have won this argument. Or so it would appear.

Last, it is important that as this assessment unfolds we do not lose sight of the fact that while socio-economic rights are justiciable, we must ask even tougher questions about the government's performance in relation to poverty and inequality, rather than pretending that judges ought to be the ones ensuring our well-being. Still, this unnecessary political initiative might yet be useful - if the research is undertaken with appropriate commitment to the key terms of reference.

Mckaiser is a political analyst at the Wits Centre of Ethics.