The case for lawfare
To the uninitiated, the made up word "lawfare", a composite of "warfare" and "law" that is self-explanatory, describes an offensive activity of little social utility that is counter-majoritarian and downright dangerous. The fear is expressed that by using the law to seek justice, the law itself is exposed to attack by the powerful with consequences that are deleterious to justice, liberty and "all things bright and beautiful".There is no doubt that the waging of lawfare does set the law up for attack by those who believe that the will of the majority, expressed through the vote of a transient majority of elected representatives (who may or may not have been fairly elected and may or may not be voting with "rhyme and reason" as Justice Kate O'Regan recently put it) is the highest expression of democratic will that has to be respected by all, no matter what the consequences. The fear is that the standards of the law become the victim of this conflict and perish in a "race to the bottom" in which barbarism prevails and law is defeated.
Fortunately, in modern democracies under the rule of law there is a higher or supreme law that has to be respected by majorities and minorities, whether large or small. In South Africa we call this higher law: the Constitution. It is the bedrock of a national accord or social contract devised by negotiation between the representatives of most who live in our lovely land. The Constitution is foundational to the way in which we are governed. All laws and all conduct have to be consistent with the values and principles which it espouses, on pain of being struck down as invalid when challenged.
The process, according to which successful challenges impugning laws and conduct which are alleged to fall short of constitutional muster is pursued, has been given the shorthand nick-name "lawfare". Invariably, a citizen or civil society body takes up the cudgels to challenge the might of the state as expressed in a questionable new law or in some form of official conduct which is lacking in rationality and legality in the eyes of the challenger. Lawfare is usually, but not always, conducted by way of litigation in courts which are constitutionally enjoined to function "without fear, favour or prejudice" and are populated by duly qualified, fit and proper persons who deal impartially with all disputes which are brought to them for adjudication. The judiciary is sworn to uphold the Constitution as our supreme law and is not beholden to anyone, least of all a transient political majority or a passing policy of that majority. Our judges are answerable only to the law and the Constitution. If this were not the case there would be no space for lawfare and society as a whole would be the poorer for it.
In SA an alternative means of conducting lawfare is to complain to one or other of the institutions created in terms of Chapter Nine of the Constitution. The most effective of these is the Office of the Public Protector. The Auditor General routinely does sterling work to hold those in government to account for the financial aspects of governing, while the Human Rights Commission attends to issues involving the alleged violation of human rights which are guaranteed to all in our state of the art Bill of Rights. The Gender Commission is there to attend to gender issues while the commission with the long name looks after cultural and language matters.
In essence, lawfare is a means of making accountability matter. The values of openness, responsiveness to the needs of ordinary people and accountability are foundational to the form of constitutionalism that has been embraced in the new SA. The rule of law (and not of men, as Prince Buthelezi is fond of saying) is supreme. The World Justice Project has devised a universally applicable definition of the concepts that are embraced by the rule of law (see www.worldjusticeproject.org).
No constitution that does not live in the hearts of the people it governs is able to survive. Constitutional values are kept alive by holding those who govern to the standards set in the constitution that have been overlooked or misinterpreted by them as they become caught up in the intricacies of some or other issue of the day in a way that is inconsistent with the constitution. The legitimacy of any constitution is dependent upon it being accepted by those to whom its values, principles, prescripts and tenets apply. Because the SA Constitution is a home grown one that encapsulates the deliberations over a period of years during which the country turned its back on apartheid and parliamentary sovereignty in favour of the constitutionalism now in place, our Constitution enjoys legitimacy in the eyes of the overwhelming majority of those who live in SA.
It is true that the Constitution has come in for criticism by leading figures in the governing alliance, including the President. One of his cabinet members has described it as a bad compromise. Gwede Mantashe, Chairman of the SACP and Secretary General of the ANC has referred to judges as "counter-revolutionaries" when disappointed with the outcome of litigation in which the judges have done no more than uphold the values of the Constitution. Indeed, any judge who is not of counter-revolutionary disposition has no place on the Bench. The revolution is, of course, aimed at overturning the order represented in the Constitution. The National Democratic Revolution of the tripartite alliance which at present enjoys a majority in most elected forums is aimed at replacing the current constitutional order with a one party state in which the party controls all the levers of power in society. That is not the deal represented in the multi-party democracy of the Constitution, which is and remains the highest law in the land.
By invoking constitutional values in lawfare, public interest litigants have succeeded in overturning the policies on provision of emergency housing for the poor, health care for victims of the AIDS pandemic, security for train commuters and social grants for foreigners. Laws that have been successfully overturned in public interest litigation include the provisions of the State Liability Act that rendered the state immune from execution of judgments for its debts and the provisions of the legislation that brought the Hawks into existence without the necessary institutional independence to enable them to function effectively as an anti-corruption entity. A commission of inquiry into corruption in the arms deals has been appointed because of lawfare. The new chief justice owes the opportunity for his appointment to the lawfare waged when the term of office of his predecessor was purportedly but unconstitutionally extended by executive action.
So, whilst it is true that the pursuit of successful lawfare provokes the ire of those who march to the sound of an essentially unconstitutional drum, it is preferable by far that the limits of the Constitution and its values be tested by lawfare responsibly conducted in the public interest than that our gloriously conceived Constitution should lose its place in the hearts and minds of ordinary South Africans who want no more and no less than what it promises to deliver: peace, progress and prosperity with dignity, the achievement of equality and the enjoyment of the various freedoms guaranteed to all in the Bill of Rights. In short, that elusive "better life for all".
Paul Hoffman SC
31st December 2011
