There's a need for a ConCourt review

Thembinkosi Zondi asks whether compromises made 17 years ago are still relevant

Of Constitutional Court and the Democratic Government's ability to Govern!

Recently, both electronic and print media have reported that the ANC, through its returning President and Secretary General, have muted a view that calls for the review of the powers that are vested by the Constitution to the Constitutional Judges. From the onset, it must be clear that the Constitution of any country cannot be reduced into a stature given its dynamic nature.

Hence, like everything under the sun, Constitutions are subject to change. As such Section 45 (1) (c) of the South African Constitution provides that the Parliament must review the Constitution annually. The need to review the South African Constitution is more serious given the fact that history teaches us that Courts could be used to frustrate progressive socio-economic change.

To illustrate, Ngoako Ramatlhodi once correctly argued elsewhere that "in the past 17 years...(there has been)... a sustained and relentless efforts to immigrate the little power left with the executive and the legislature to civil society and the judiciary...Power (is) systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes".

He further argued, as Francis Fanon in his "Pitfalls of National Consciousness", that the situation described above could result into a context where "elections (freedom day celebrations) would be regular rituals handing empty victories to the ruling party". Somehow a similar point was made by Marx and Engel's that the government executive is nothing, but the managers of the interests of the ruling class (NOT Party).

Flowing from the above, it is fair to request that those who have arrogated themselves the status of being "the gurdians of the Constitution" (although they neglect a critical question of who "guard the guardians") should welcome and view the call correctly made by the President as an endeavor to strenghen the most important and cardinal principle of separation of powers.

According to this principle, (see Montesquieu epic entitled "The Spirit of the Laws", [1734], 1949)), powers must be separated between the executive (implementers of laws), legislative (law makers) and the judiciary (interperters of law). The rationality behind the separation of powers (trias politica) is to prevent a situation wherein one institution or arm of government would have "absolute power that (could) corrupt absolutely".

Consequently, one arm or institution of government should check and balance the power of the other. It must however be noted that the principle of trias politica is conceptually and practically absurd and self-contradictory. For instance, the judiciary does not only interpret the law, but it also passes them through precedents.

Additionally, the judicairy can invalidate any law passed by the Parliament or action conducted by the government executive. This literally means that powers between these three arms of government do overlap. On one hand, for example, the President has powers to pardon criminals which could arguable be the duty of the judiciary. On the other hand, the judiciary enjoys powers to dictate as to what the Executive can and cannot do.

Any rational citizen would agree that the above conceptual and practical contradictions therefore contributes in vindicating the view that powers vested in the Constitutional Court judges must indeed be reviewed as a matter of urgency.

Moreover, it is a historical fact that most Constitutions in post-colonial societies are products of strategic compromises aimed at managing competing interests of different progressive and regressive forces. Hence popular forces as led by the ANC made a lot of strategic compromises given that the global and domestic balance of forces prevailed against a popular agenda.

It is high time that the ruling party goes back to its radical agenda otherwise South Africa will one day wake up from a 'rainbow nation hangover' with a 'coup d'etat' staged through the Constitutional Courts as it once happened in Chile and Venezuela .

The Strategy and Tactics of the ANC as adopted in Polokwane 2007 notes that both global and domestic balance of forces have changed in favour of radical policies that were strategically compromised during Codesa 1 and 2. 17 years down the line the ANC cannot continue to be apologetic about using its political power to advance policies that will strengthen the government's capacity to create a united, non-racial, non-sexist, democratic and prosperous South Africa.

The ANC, just like the Indian Congress after 20 years of being in Power, will one day regret the opportunity and the trust given to it by the masses of South African. It cannot be right that regressive non-governmental organisations, rich individuals, and opposition parties could hold the government to ransom through Courts.

It cannot be correct that 17 years down the democratic "free way", the size of one's pocket determine the type and quality of legal and basic services received from the state. It cannot be correct that judges close their eyes when some whites brutal kill black people and claim to have mistaken them for animals while black people get harsh sentences for stealing a loaf of bread.

The failure to amend the powers vested in the courts in general and the Constitutional Court judges in particular will haunt the ANC in future because the patience of the people with our movement is not permanent otherwise the masses will take the law into their own hands as it has already started in some areas.

Finally, those who vehemently oppose the ANC's proposal to review Constitutional Court Judges' powers must ask themselves as to what type of democracy would allow a bunch of 11 individuals to overrule a popularly elected government just because of their academic qualifications.

They must also reread Section 45 (1) (c) of the South African Constitution and the Canadian experience where the government is allowed to pass a particular law even if the Constitutional Court is against it because nobody must the hold an elected government into ransom at least not in our lifetime.

Thembinkosi "Guerrilla" Zondi, is Moses Mabhida Region's KZ221 Ward 3 outgoing ANC Branch Secretary. He writes in his personal capacity.

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