Bravo, Chief Justice Chaskalson
In his youth, retired Chief Justice Arthur Chaskalson was reputedly a keen soccer player with a fine appreciation of the intricacies of the off-side rule. In his retirement, after a long and illustrious career that was crowned by his leading the Constitutional Court for the first ten years of its existence, he has emerged as a super referee to red-card persistent critics of the Constitution, the Courts and the direction of transformation, for their infringements of the off side rule in governance.Speaking to a workshop at the University of Cape Town during which the Administrative Justice Association of South Africa was launched, the former Chief Justice delivered an address in which he meticulously analysed the nature of the values of our Constitution, the inwardness of its transformative tenets and the proper implementation of transformation via the judgements of our duly transformed Courts. He thoroughly rubbished the views of those who argue that the Constitution is a stumbling block in the way of transformation of South African society and that the Courts are an untransformed bastion of conservative resistance to the transformative intent of the new post-liberation order.
The scope and majesty of the address is such that it is impossible, in the space available, to do it justice. It ought to be required reading, in full, for all engaged citizens, everyone with any interest in the law and in the future of the country. Click here for the whole address.
The focus of this comment relates not to the content of the address, but to the answer which the retired Chief Justice gave to a question he was asked after delivering it. As can be seen from the text of the address itself, while the criticisms that he exposed were given a good rubbishing, the motivation of the critics was not examined. Given his position, it is quite understandable that the former soccer player prefers to remain on the sideline of politics rather than descend onto the party political playing field. The question related to the clash in values between the Constitution and the values of the National Democratic Revolution to which the governing alliance (consisting of the ANC, Cosatu and the SA Communist Party) subscribes. It was suggested that this clash and the inconsistency of the values of the National Democratic Revolution (NDR) with those of the Constitution is actually the cause of all the trouble.
Sidestepping with the nimble grace of a superb centre forward and smiling sweetly, the retired Chief Justice replied: "I have always thought that the values of the NDR are in the Constitution".
The problem is that there are those within the tripartite alliance who do not agree with his deferential and deflective reply. They are referred to in his address as "those who blame the Constitution for lack of transformation". Gwede Mantashe, who chairs the SA Communist Party and simultaneously serves as the secretary general of the ANC, is at the forefront of these critics. He mutters darkly about "counter-revolutionary judges" who enforce the Constitution. Ngoako Ramatlhodi, Deputy Minister of Correctional Services, feels the Constitution strips the legislature and executive of power. For them the entrenchment of human rights and the supremacy of the Constitution are secondary to the tyranny of the majority and the quest for hegemonic control of all the levers of power in society. President Zuma and his legal team often find themselves arguing for unfettered executive powers that do not co-exist with constitutionalism. In the course of the address they were cogently corrected on their misguided approach. Judges, who are sworn to uphold the Constitution, are, by definition, counter-revolutionary. All revolutions are aimed at supplanting the existing order.
While the former Chief Justice suggested public dialogue on what the critics of the Constitution actually want in its place, the content of that engagement belongs more on the political than the legal terrain. It is a debate that takes place largely within the broad church that is the tripartite alliance. Opposition politicians seem fearful of engaging with the NDR.
The effect of all this is that the NDR is pursued without public debate, rather than as a result of open and honest engagement in the realms of ideas and values. This is not to say that the ANC is devious about the goals of the revolution it espouses. A visit to the "strategy and tactics" page of its website reveals the forward planning that goes into the realisation of the goals of the NDR.
The difficulty is that many of its goals are indeed inconsistent with the transformative goals of the Constitution. Under the Constitution the revolutionary goals are invalid and accordingly can not be realised without radically changing the existing dispensation. The Courts are enjoined to strike down conduct which is inconsistent with the Constitution, and they do. A one party state in which the party and the state are effectively indistinguishable is a far cry from the multi-party democracy under the rule of law envisaged in the Constitution. Checks and balances on the exercise of power do not exist in NDR heaven, the judiciary there will be populated by its deployed cadres to do its bidding. Accountability, openness and responsiveness will be replaced by the type of organisation that existed in the USSR until it was abandoned as a failed revolutionary experiment in 1989, when the Berlin wall was demolished. Totalitarian thinking is dead in most modern democracies, but it lives on anachronistically in the hearts and minds of the proponents of the NDR.
Ranged against them, but within the tripartite alliance, are many who do not embrace NDR values. The report of Trevor Manuel's National Planning Commission is mainly based upon constitutional values, not those of the NDR. The thinking of Joel Netshitenzhe, a leading ANC figure, is that entrenched human rights and a "law-governed" society with the separation of powers in place are ANC policy. He says:
"The principle in our constitution that 'there shall be a separation of powers between the legislature, the executive and the judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness' and that no branch would wield more power than other branches is a matter of conviction on the part of the ANC and not the convenience of political compromise".
This directly contradicts the utterances of Ramatlhodi.
Deputy President Motlanthe speaks of the need for the ANC to "renew itself by re-emphasising the traditions and core values" and preventing itself from being corroded by the sins of incumbency. He envisages the ANC emerging "fully consistent in outlook and orientation with the character of a modern progressive party".
It is clear that the first three comrades are not singing off the same hymn sheet as the latter three. How the outmoded values of the NDR fit into the character of a "modern progressive party" of the 21st century is hard to tell, unless inspiration is sought from North Korea or Cuba, where less than "modern progressive" parties hold sway. It is surely preferable to learn from the disastrous dalliance with one-party-statehood in Zambia, which has reverted to constitutionalism. The late Kader Asmal publicly called for the scrapping of the NDR. If its supporters were to heed his call, the clash in values which prompted the retired Chief Justice to speak out so resoundingly would end. If Professor Ben "We were Stalinists" Turok and Comrade Jeremy Cronin keep trying to get their way, South Africans can anticipate that future super-refs will also have to dish out hat tricks of red cards. The Stalinists not only deny the core values of the Constitution but repudiate the proud record of the ANC thus forsaking the memory of those who fought for those values.
The NDR, which provoked the deflected question, is indeed a matter for public discussion.
Paul Hoffman SC
30 January 2012.
