Our Potemkin constitution II

RW Johnson writes on the ConCourt's record of political partiality

In any normal constitutional democracy – the USA, France, West Germany, whatever – as the institutions of the republic settle down from their founding years there are invariably major clashes between the executive, the legislature and the judiciary, and particularly between the executive and the supreme judiciary. Typically, these result in landmark rulings or precedents which set the boundaries for how these institutions work.

This has not really happened in South Africa. Under its first Chief Justice, Arthur Chaskalson, the Constitutional Court was clearly deferential to the ANC – hardly surprising when Chaskalson himself was an SACP sympathiser and a number of the other judges were either ANC members or prided themselves on an ANC-defined political correctness.

The Court’s first challenge came over the death penalty. The ANC wanted it abolished but didn’t want to legislate that through Parliament because they were well aware that public opinion massively favoured the death penalty.

So the Court ruled that the Constitution enshrined “the right to life” and that the death penalty was therefore unconstitutional. In fact several of the judges were quite indignant that they had thus to bear the unpopularity for abolition (one of them complained quite bitterly about this to me) and felt it had been cowardly of the ANC to push this dirty job onto them. But they bent the knee and did what the government wanted.

Next came the Louis Luyt case in 1998.Steve Tshwete, the Minister of Sport, announced the setting up of a commission of inquiry into South African rugby. Luyt, the then boss of SA Rugby, objected that only the President had the power to set up such commissions.

Tshwete’s Director-General, Mthobi Tyamzashe, put out a press statement saying that Mandela had happily agreed to a commission, to which Luyt then objected that Mandela could not have applied his mind. Later Tyamzashe was forced to admit to perjury, though insisting that his lies had been “honest lies”. Tshwete was also forced to admit to telling lies.

Ultimately Judge William de Villiers, called Mandela to testify. Mandela treated the court to much political rhetoric. refused to address De Villiers as “your Lordship” and flatly refused to answer a number of questions., De Villiers found that Mandela’s testimony “lacked credibility” and roundly criticised Mandela’s behaviour in court and found in Luyt’s favour.

The ANC, which hated Luyt, threw a paroxysm of fury. The case made its way to the Constitutional Court. Luyt objected that many of its judges were personal friends of Mandela and asked for their recusal. This was, of course, quite true but none of the judges recused themselves. They then overturned De Villiers’ verdict – at which Luyt simply laughed. It was, he said, “about as surprising as hearing that the All Blacks had beaten Japan. We had no real chance.”.

The case did the Constitutional Court no credit. De Villiers was a reputable judge and there was no doubt about Mandela’s open disrespect for him, his refusal to answer questions or his recourse to political rhetoric out of place in a court of law.

All of that had been overlooked and the case had gone the way of those who openly admitted perjury. And, of course the judges were compromised by their relationships with Mandela. The ANC angrily declared that Mandela would never appear in another courtroom – for his appearance had been a disaster.

Next came the government ruling that the franchise in the 1999 election would depend on citizens producing the new bar-coded ID books. Only non-Africans were affected, with a large number not having secured the new green ID books by this point.  

Opposition parties took the case to the Constitutional Court, arguing that it must be unconstitutional to make the basic right to vote conditional upon producing a discretionary document. The Court mysteriously found for the government. Just as the Nats had begun their rule by depriving Opposition (Coloured) voters of the franchise, now the ANC had done exactly the same. Given the centrality in South African history of the struggle for the franchise it was utterly shameful that the Court had gone along with this.

The first time the Constitutional Court appeared to rule against the ANC on a pressing political issue was in the case Minister of Health and Others v Treatment Action Campaign and Others. In this case the Constitutional Court dismissed, in July 2002, the government’s appeal against the December 2001 ruling by Judge Chris Botha in the Pretoria High Court ordering the government to “plan an effective comprehensive national programme to prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counselling and testing, and where appropriate, Nevirapine or other appropriate medicine.”

Given Mbeki’s deep personal commitment to AIDS dissidence/denialism by this point – part of which involved rejecting anti-retrovirals such as Nevirapine on the basis of their toxicity – this was seen as a historic assertion of the court’s independence.

There was in reality far less to this ruling than initially appears. Although Mbeki remained privately committed to his views, and his close allies continued to do their best to obstruct the provision of such treatment, the ANC government had formally agreed by this point to allow it. A number of senior figures in the ANC, including former-President Nelson Mandela, had also publicly come out in favour of this treatment. In March 2002 the Phase 2 trial results of Virodene had been unblinded, and these had shown the alternative cure for AIDS that Mbeki and the ANC had invested so much in, to be inefficacious.

Mbeki’s AIDS policies had, furthermore, become such an issue in the Western press by this point that had the Constitutional Court ruled in the government’s favour its international standing would have been ruined. As it is the Court did its best to soften the blow. Judge Botha had written a very strict order requiring that government respondents report back to the court, by a certain date, what they were doing to implement his order, so that it could be monitored and responded to in an ongoing fashion by the TAC. This was stripped from the order ultimately issued by the Constitutional Court. This meant, in effect, that implementation of the order was dependent, in large parts of the country, on the good faith of the Premier and health MECs in ANC-controlled provinces, many (though not all) of whom were unthinking Mbeki loyalists. Thus the Constitutional Court had been able to keep its good name by not siding with the Aids denialists but had also acted in a way which permitted Mbeki to ignore Judge Botha's ruling in practice.

Once Chaskalson’s term finished he was replaced as Chief Justice by another open ANC supporter, Pius Langa. Later, Dikgang Moseneke, by common consent the Court’s most distinguished member, was denied the Chief Justiceship because he openly opposed the now Zuma-controlled ANC.

It would be otiose to labour the point about the Court’s partiality, case after case. It is, though, worth pointing out that the Constitutional Court has been particularly biased against the Afrikaans language - despite the constitution being quite clear in its assertion of language rights. That is, the Court was not pandering to any government ruling on the matter, merely to the known spitefulness of many ANC cadres towards “die Boere”.

The one partial exception to this story is, of course, the Court’s finding in 2016 that President Zuma had violated the constitution by failing to carry out the Public Protector’s ruling that he must repay part of the public money spent on his Nkandla residence, and that Parliament had failed in its constitutional duty to hold Zuma accountable. This was indeed the highlight of Mogoeng Mogoeng’s career as Chief Justice and was much to his credit.

However, several points should be made. First, this ruling was possible only because the ANC was badly split, with many members vocally critical of Zuma’s corrupt and disastrous rule. Second, as one surveys the wreckage of Zuma’s “nine wasted years” in which an estimated R1 trillion was stolen from the public purse, this one negative finding by the Court – and only part of the public money spent on Nkandla had to be returned, after all – seems rather paltry compared to the virtual destruction of constitutional government under Zuma. Thirdly, the order of the court had been agreed to beforehand by the Presidency itself.

One is bound to note, too, that when Mogoeng Mogoeng later spoke up in favour of Israel, thus defying a major ANC shibboleth about which the party was united, he was quickly reduced to a complete and abject silence and then rapidly disposed of as Chief Justice even though there was, as yet, no one to take his place.

The Constitutional Court, then, is not the summit of an independent judiciary. There are some independent-minded judges but many are clearly far from independent and the Constitutional Court clearly plays a subordinate role and most of its judges seem quite happy with that. The calibre of the Court is not high and many of the most able candidates for the Court have been turned down, making it clear that sheer ability is not the main criterion for selection. . .

However, what applies to the Constitutional Court applies to all the other supposedly independent institutions. As was first clearly revealed during the Arms Deal (but has been confirmed on many subsequent occasions) the Speaker of Parliament was and is a deployed ANC cadre who unswervingly follows the party’s dictates even if that means disobeying the oath that every Speaker takes to uphold the constitution, to exercise complete impartiality and to preserve the integrity of Parliament.

 There is no end to such examples. Cadre deployment is the mechanism which turned South Africa’s constitution into a Potemkin constitution.

As I was writing this I was amused to see that Tony Leon, writing on the same subject[1], had referred to Parliament as “a veritable Potemkin village”. Tony recounts how he commissioned James Myburgh to write a key report on the matter but that when he first tried to raise the alarm about cadre deployment in 2000 he was attacked by Business Day for “McCarthyism”. This is entirely true: I remember discussing cadre deployment with Tony at that time and we both remarked on the remarkable blindness of virtually all received opinion on this vital matter.

Thanks to the excellent work of the DA MP, Leon Schreiber, we now have the minutes of the Deployment Committee for 2018-21. The ANC is not pleased and says that the minutes were not supposed to have been released. Without doubt they will stonewall any efforts to obtain further information. Currently they are saying that the minutes of the earlier period are missing. This is clearly another “honest lie”.

If anyone is surprised by the truths that have come to light as a result of the publication of the Deployment Committee minutes, it can only be because they were hitherto not really paying attention. How else did they imagine that the pro-ANC majority on the Constitutional Court was so carefully preserved?

We have recently seen yet again how a really able candidate for the Court, David Unterhalter, was sabotaged by clearly concerted political attacks at the JSC. Surely no one thought that was happening by accident?

The fact was that South Africans of all stripes wanted to believe in the ANC’s good faith and wanted to believe that they lived in a proper constitutional democracy. Others were simply naive.

C. Wright Mills used to describe “the American celebration” whereby speakers at all public occasions would recite a paean of praise to America in order to show there was nothing unAmerican about them.

Something similar has been true in South Africa where speakers enjoy evoking the Rainbow Nation, our wonderful constitution, Desmond Tutu, Siya Kolisi, Temba Bavuma and Evita Bezuidenhout.

This is all harmless enough but it is no substitute for proper thought or comprehension. Naivete and credulity are not evil traits but the problem with naivete and “wanting to believe” is that one ends up living in a fool’s paradise.

R.W. Johnson