What should reign supreme – political constitutionalism or legal constitutionalism? In a democracy, what should hold sway – the supremacy of the Constitution or that of Parliament? Is our constitutional order a democracy or? ‘juristocracy’? Is South Africa sliding into a state that will culminate in the ‘juridification’ of the political process, or are we on the cusp of an order characterised by the politicisation of judicial processes? When the Freedom Charter declares that, “The people shall govern”, where should power reside – the judiciary or elected representatives? Ours is not the first society nor are we the first generation to ponder these questions and there is no prize for guessing why they are relevant today. Furthermore, the answer to these questions depend on who one asks.
In this regard, there are many schools of thought but two are pertinent for the framing of my argument in this article – those who believe in the political constitution theory and those whose approach is shaped by legal constitutionalism. According to the adherents of the political constitution theory, political matters must be decided by politicians through political mechanisms and processes. In a democracy, this must be so because, unlike the judiciary, public representatives have, through an election, have been mandated by voters to give political expression to the will of the people. The judiciary should, therefore, stay in their lane since its work is not informed by an electoral mandate. According to the adherents of the political constitution theory, the alternative is the ‘juridification’ of the political process. Perhaps in a manner less elegant and sometimes clumsy, some of our politicians have been making similar noises and chief among them being former president Jacob Zuma. Zuma argues that, not only the Deputy Chief Justice and the commission he heads, but the Constitutional Court and the judiciary in general, are part of a political conspiracy to destroy him. Some of his supporters insist that our country is under the rule of a dictatorship of the judiciary and, they too, insist that Zuma is, indeed, a victim of politicians in judicial gowns. The Commander-in Chief of the Economic Freedom Fighters (EFF) advised our judiciary this week to stop behaving like untouchables who are above the law or risk facing a popular rebellion against their excesses. Malema also avers that there are judges who are in the pockets of white capital. Are the allegations against the judiciary well-founded? Before I venture an answer, let me briefly outline the position of legal constitutionalists.
According to those who believe in legal constitutionalism, the best way of holding politicians accountable is through judicial review. Some of them argue that the political process cannot offer ultimate protection against the excesses of, and abuse of power by politicians. Some go further and propose a juristocratic system as a preventative mechanism, remedy, antidote and cure for the ills that they believe are inherent to a system governed by the notion of political constitutionalism. For me the irony is that the tension between the notions of legal constitutionalism and and political constitutionalism is nothing more than a family feud. Both of them represent the triumph of the liberal democratic aesthetic and its attendant western conception of the rule of law and how society should be organised. That said, should we take the claims against our judiciary seriously?
If the level of political support for the former president is not being exaggerated, we should be worried because if he succeeds in expanding his network of political support beyond the factional divide in the African National Congress (ANC), South Africa may find herself in the middle of unprecedented levels of political uncertainty. In this scenario, the veracity or otherwise of the allegations against the judiciary are irrelevant. What is relevant is the extent to which they can be turned into a potent political weapon. Obviously, Zuma is at a disadvantage in the plagal terrain. What he must do is to move the challenges ranged against him to the political terrain where he may be more tactically adept. It is in this context that we must analyse the High Tea between the Commander-in Chief of the EFF and the former president of the ruling party. Both men have political ambitions. Malema wants to be regarded as an elder statesman. It is in this capacity that he sought to deliver Zuma to the Zondo Commission. In addition, Malema’s presidential ambitions are as hidden as the scrotum of a goat in heat. Zuma, the wily politician that he is, knows this. Malema’s ego has the potential to be an ally to Zuma. As for Malema, if his presidential ambitions are not a figment of my imagination, does he care whether it is through the ANC, EFF or by some other means that he gets to the Union buildings? Also, we must not forget about ANC secretary-general, Ace Magashule, a man who stands accused of corruption in courts. If his own political support is not being overrated, hell and its political demons will break loose when the Zuma and Magashule legal matters intersect. Magashule’s supporters have themselves argued that their man is a victim of a political conspiracy that is being staged in our courts. In other words, the Zondo Commission, the Constitutional Court and the judiciary in general have now become extensions to the court of public opinion as well as political battles inside and outside the ruling party.
But, I do think it is high time Zuma adduced evidence of the judicial conspiracy against him. This i say because within the four corners of the statements he has issued so far, the evidence of a judicial conspiracy is a bit on the thin side. That notwithstanding, I am not one given to believing that absence of evidence is always evidence of absence. I am, therefore, open to the possibility that, outside the four corners of what is alleged by Zuma, Malema and others, evidence of a conspiracy against Zuma and corrupt relations between some members of the judiciary and shady characters in politics and business may indeed be adduced. We must not forget that the legal team of Arthur Fraser, the former head of intelligence, has promised that their client will share with the Zondo Commission damaging state secrets about the current president and for heads of state, parliamentarians as well as judges. My own attitude is that the judiciary, as an institution, is independent. However, I am not certain the same can be said about every judge this side of heaven. So, with bated breath i await evidence of things nefarious on the part of some of our judges. Surely, Zuma and Malema must know that the time to be coy is behind us. In fact, they must know that the institutional uncertainty caused by unfounded allegations may be as damaging as actual evidence of judicial impropriety. But, we should not rule out the possibility that the former president has never believed in the supremacy of the Constitution. It is also possible that Zuma is simply emblematic of a tendency that is instinctive to many in the ruling party – the supremacy of a parliamentary majority. But damage to the integrity of the judiciary may be caused by a mixture of two powerful ingredients, namely; the allegations of judicial impropriety and something that was said by a judge who shall remain nameless for now when he argued that the Constitution has failed to deliver to the victims of apartheid colonialism. The latter, accidentally or otherwise, may lend credence to the former. But the defenders of the judiciary – the democrats – may themselves be suffering from a proclivity that is not uninteresting – the idea that our country and its judges are exceptional. Therefore, bad things that have happened in other jurisdictions such as the exposure of the corruption of some judges in Ghana is not possible here. I, for one, am not that naive but I do believe that it is the patriotic duty of those who accuse the judiciary of being guilty of things venal to bridge the gap between words and what such words describe.
In the end, however, neither the notion of legal constitutionalism nor the theory of political constitutionalism leave me sated. Both represent elite capture of the political process and, therefore, especially in our post-apartheid context, have very little to do with giving content to the aspirations of our people. Neither constitutes demonstrable evidence of the clarion call in the Freedom Charter for people’s power. However, this moment in our history is pregnant with both danger and possibility. If the allegations against the judiciary are unfounded, we are playing tennis with a hand grenade. If they are, and we choose to succumb to a false sense of South African and judicial exceptionalism with the elitist content that goes with it, we run the risk of becoming complicit in a crime against our people, and when our motives are unmasked, the country will slide inexorably towards a popular revolt against the judiciary. The alternative is the peace that will, hopefully, be delivered through an honest conversation about the state of both our politics and the judiciary.
Aubrey Matshiqi is a seasoned political analyst and writes in his personal capacity.