The people have spoken, Mr President
Despite negative reactions to his speech at the recent Access to Justice Conference, the President was at it again in Parliament last week, when he bid outgoing Chief Justice Sandile Ngcobo farewell, and welcomed his successor. More sustained negative reaction from all of the usual quarters has been forthcoming: editors and commentators have waxed lyrical on the topic.It is important to delve more deeply into the reasons for the President being so wrong about the doctrine of the separation of powers and so ignorant about the checks and balances on the exercise of power that are inherent in any functioning constitutional democracy. Indeed, the separation of powers exists in order to assist in the checking of potentially unbridled power in the hands of any branch of government. The legislature is meant to hold the executive to account and the judiciary is there to see to it that the rule of law is upheld in both civil disputes and criminal prosecutions.
Our courts do not have to go out looking for work; cases are brought to them for adjudication. Access to the courts is guaranteed to all. Our judges hold office to manage conflict in society in a measured, controlled and civilised fashion, according to an ever refined and constantly refining set of rules and norms that have been developed over many centuries. Judges are answerable only to the law and the Constitution which they are sworn to uphold without fear, favour or prejudice. Courts are not above or below the other branches of government; they are the arbiters of what is legally permissible and correct. All of us, from the President down to the most humble individuals, are bound by the final ruling on appeal in any dispute in which we are involved. The judiciary is an independent branch of government, judges have security of tenure and any notion of a hierarchy among the executive, legislature and judiciary is a misconception. The Constitution means what the judges interpret it to mean. Accordingly, when the consistency with the Constitution of any Act of Parliament, other law or even conduct of the Executive is challenged, it is the unenviable task of the courts to decide whether or not the challenge is well founded. In those cases in which the inconsistency of activities of the other branches of government is established to the satisfaction of the courts, it is necessary that remedial action be taken to render that which was found to be unconstitutional consistent with the Constitution, which is the supreme law in South Africa.
A topical example of an Act of Parliament which has failed to pass constitutional muster is the SAPS Amendment Act in terms of which the Hawks unit, or Directorate of Priority Crime Investigation, was formed. The Constitutional Court has directed Parliament to take steps to remedy the situation in which the Hawks lack the necessary degree of independence to be an effective anti-corruption entity. This order binds the other branches of government and steps are currently being put in hand to prepare the required remedial legislation.
In law, it matters not that the will of the majority of the delegates at the Polokwane conference of the ANC was in favour of the establishment of the Hawks and the disbanding of an earlier suitably independent corruption fighting entity called the Scorpions. It also makes no difference that the majority of the voters in SA supported the ANC, after the Polokwane conference decisions were made, during a general election held in 2009. The tyranny of the majority forms no part of the current constitutional order in SA. As the Constitution is the supreme law, any new law has to be consistent with it, on pain of being struck down for its invalidity.
A more topical example of executive action that could not pass constitutional muster is the decision of successive Presidents to refuse to appoint a commission of inquiry into wrongdoing in the arms deals. Only when faced with the choice of filing affidavits explaining the refusal to do so or of reversing the decision, did the President finally change tack. He has now, very properly, appointed a commission of inquiry with wide powers and comprehensive terms of reference. Had the courts not had the constitutionally conferred power to adjudicate the challenge to the refusals, there is no way in which the commission would have seen the light of day. Turkeys don't vote for Christmas.
Courts do not have policy making powers. They can only determine whether any challenged policy, law or conduct is compliant with the Constitution. The Constitutional Court has the final say in determining whether laws are up to the standards set in the Constitution and it has been scrupulously careful not to make policy for the other branches of government in any matter which has come before it thus far. This does not mean that the government is absolved from changing such laws or policies as are found to be unconstitutional - it is just that the courts do not prescribe the changes that need to be made to bring the situation into alignment with the supreme law.
This dispensation did not come about by accident. It is the product of a national accord that was developed and painstakingly negotiated by representatives of all of the people of SA between 1990 and 1996. Over 2 million citizens actively participated in the constitution making process by making submissions themselves. Parliamentary sovereignty, as practiced under apartheid, was abandoned. The call of the Freedom Charter was heard: "The people shall govern" has been interpreted by Codesa to mean that the people will govern under a system of multi-party constitutional democracy under the rule of law. The people entrust the day to day business of governing to the various institutions they have created in the Constitution including those commissions established in Chapter Nine to protect the public, their human and other democratic rights.
The people have a healthy degree of suspicion about the motives of politicians. They know that power corrupts and have been careful to avoid putting absolute power into the hands of mere mortals. The mandate given to any winning political party is not an unqualified one. All politicians are constrained by the limitations of the Constitution and the law. They are obliged to respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. Transient majority support does not elevate the Executive to a role that entitles it to claim any form of superiority. Like everyone, the Executive can only do what the Constitution allows it to do. This salutary limitation on possible excesses is a valuable one. It brings stability and order through the checks and balances on the exercise of power. This is possible and achievable because the doctrine of the separation of powers is part of our system. This encourages a climate conducive to investment, job creation, improved education and rising standards of living. This will prevent revolutionary change, if, as should be so, the Constitution is properly implemented and allowed to survive the aims and objectives of the national democratic revolution whose proponents have aspirations of establishing a one party state in which they have hegemonic control of all the levers of power in society - in both the private and public sectors. The rule of law does not survive such revolutionary change, nor are the peace, the progress and the prosperity, which most people want, attainable in revolutionary circumstances. As the Constitution is overwhelmingly accepted, both at home and abroad, as a model instrument of governance, the President should heed the voice of the people reflected in it and accept that he and his government can not do as they please because they are constrained by the values, principles, tenets and standards of the Constitution. This involves the abandonment of revolutionary thought, Mr President.
Paul Hoffman SC
14th November, 2011
