By Paul HOFFMAN

Centre for Constitutional Rights

I have been asked to address you on the degree to which our new society is founded on, and operates according to, constitutionalism.

The process of negotiating the national accord, which underlies the Constitution was a long, arduous, and thorough one. It involved political parties representing substantial majorities in all our communities. Ours is a home-grown and thoroughly indigenous product of which all South Africans justly deserve to be proud.

South Africa is now a teenaged constitutional democracy, and, as so often happens with teenagers, problems do occur. It is important for constitutionalism that these problems are appropriately addressed so that the pimples and late nights do not develop into more serious problems.

Constitutionalism defined.

In my discussion today I would like to embrace the three tests of constitutionalism propounded by Professor Mangu of UNISA. They are:

• Firstly, does the Constitution impose limitations upon the powers of the government?

• Secondly, does the Constitution enjoy domestic legitimacy, in the sense that it is accepted by the people?

• Thirdly, does it protect, promote and enforce human and peoples’ rights?

Limitation of Government Powers.

The Constitution places limitations on the powers of the government by:

• Making the supremacy of the Constitution and the rule of law founding provisions;

• Establishing an independent judiciary whose judgments and orders bind all organs of state;

• Separating power between the Executive, the Legislature and the Judiciary; and by

• Establishing independent state institutions supporting democracy.

Our new society was undoubtedly founded on the principle of the supremacy of the Constitution and the rule of law. Section 1 of the Founding Provisions of the Constitution entrenches the supremacy of the Constitution and the rule of law and Section 2 determines that any ‘conduct inconsistent with the Constitution is invalid’, and that the obligations imposed by the Constitution must be fulfilled.

The ANC has committed itself to “the fundamental provisions of the basic law of the land”, which it states in its Strategy and Tactics documents accords with its own vision of a democratic and just society. However, it stresses that its commitment to the Constitution should be viewed “within the context of correcting the historical injustices of apartheid”. In other words, the ANC interprets the Constitution within the framework of its own National Democratic Revolution - whose central proposition is the elimination of what it regards as the continuing inequalities arising from apartheid.

The independent judiciary represents the most important limitation on the power of government. The judiciary is answerable only to the law and the Constitution. The requirements of section 2 of the Constitution in effect mean that all conduct by anyone and all législation emanating from whatsoever source can be scrutinized on the basis of its compatibility or consistency with the standards of the Constitution and, if found wanting, can be struck down as invalid.

In general, the Government accepts and implements the décisions of the courts - even where they conflict with its policies. However, there are numerous examples of the failure of government departments - particularly in less developed provinces - to carry out court orders.

There are also some serious concerns regarding moves to “transform” the judiciary. A constitutional amendment and a batch of bills containing amending legislation aimed at making the judiciary “more responsive to the aspirations of the people” (earlier called “the masses”) were first gazetted in December 2005. After a huge outcry in which all living Chief Justices participated, they were withdrawn in July 2006. However, at its Polokwane conference last December, the ANC once again called for the implementation of far-reaching reforms of the judiciary before the end of the present government’s term of office. The reforms would include:

• The establishment of the Constitutional Court as the single apex court - thus removing the status of the Supreme Court of Appeal as the final arbiter of all non-constitutional issues;

• A warning that the courts should not unduly encroach on areas that are the “responsibility of other arms of the state” (thus limiting their power to require government to take practical steps to assure constitutional rights through the provision of anti-retroviral drugs and basic housing?);

• Transfer to the Minister of Justice ultimate responsibility for “the administration of courts, including any allocation of resources, Financial management and policy matters”; and

• The establishment of “a single rule-making mechanism for all courts, in terms of which rules drawn up by the Rules Board would be subject to the approval of the Minister and Parliament.

Another limitation of the power of government is the separation of powers. However, the reality is that the borders dividing the exécutive and the legislature are becoming increasingly blurred. Parliament is firmly under the control of the executive and of the ruling movement and often fails to carry out its oversight duties in the manner envisaged by the Constitution. As Andrew Feinstein recently pointed out, this was particularly the case with regard to the manner in which it dealt with questions arising from the notorious arms deal.

The Government is also encroaching into areas of civil society that should be the preserve of the citizens involved. In terms of the recent legislation, the Minister of Health will now appoint the board of the association that represents the medical profession. The members of the association will not have the ability to do so themselves. Recent policy proposals on the legal profession would give the Minister of Justice similar powers with regard to the proposed professional body representing attorneys and advocates.

The lines between the ruling movement and the State are becoming increasingly indistinct. The Polokwane conference adopted a resolution requiring “all senior deployed cadres in various centers of power” (presumably including the public service and the security forces?) “to go through political classes to understand the vision, programme and ethos of the movement.” The incoming NEC was instructed “to give strategic leadership to cadres deployed in the state and to improve capacity to hold cadres deployed accountable”.

In addition to the checks and balances inherent in the separation of powers, Chapter Nine of the constitution creates a phalanx of institutions to uphold constitutional democracy. The most important of these are the Human Rights Commission, the Public Protector and the Auditor-General. All are enjoined to act impartially and to perform their functions without fear, favour or prejudice. Jointly and severally they constitute a means of limiting the exercise of power by government, of holding it to account and of dealing with improprieties as they arise.

However, some of these institutions are under pressure. Although the HRC often plays a constructive and independent role in the protection of fundamental rights, the Public Protector is perceived to be executive minded and crippled by inefficiency. The Auditor-General has been accused by Andrew Feinstein of permitting government interference with regard to the arms scandal. In addition, the Asmal Commission last year recommended the abolition of several of the other institutions involved - including the Pan South African Languages Board and the Commission for the Protection of Cultural, Religious and Linguistic Minorities.

The most serious erosion of the powers of the independent institutions has, however, centred on the Polokwane resolution to dissolve the National Prosecution Authority’s Directorate of Special Operations - otherwise known as the ‘Scorpions’. It will soon be argued in court that this decision is illegal for want of compliance with the requirements of rationality in all government actions; unconstitutional for its emasculation of the NPA; unreasonable because it would disband a highly successful crime-fighting unit; unfair because the labour rights of individual Scorpions would be violated; and unresponsive to the needs of the people at a time when crime is rampant in the country.

The challenge that the abolition of the Scorpions poses to constitutionalism cannot be over-stressed. The fear is that if the unit is disbanded, the government itself will be left with the final decision as to who should, and who should not be prosecuted. This would constitute a major restriction of the ability of our constitutional dispensation to limit the power of the Government.

Domestic legitimacy of the Constitution

Internal features of the Constitution which ensure domestic legitimacy include provision for:

• Regular élections

• Freedom of expression

• Freedom of political activity, the rights to assemble, protest, and to picket.

There can be little doubt that our Constitutional dispensation enjoys domestic legitimacy and acceptance by the people. We measure this legitimacy in free and regular elections presided over by an independent Electoral Commission. We have free and outspoken media with no limitation on the expression of political opinion. There is no limitation on the ability of people to organize, form political parties, to assemble, or to protest publicly.

There are, however, some reasons for concern:

The Polokwane conference resolved that the media should “contribute towards the building of new society and be accountable for its actions”. It also expressed the belief that the arts and culture should serve the purposes of its National Democratic Revolution” and that the media needed to “take on a specific responsibility in this regard.”

The resolution on the media warned that “the right to freedom of expression should not be elevated above other equally important rights such as the right to privacy and more important rights and values such as human dignity”. It called ominously for an investigation into the establishment of a Media Appeals Tribunal to “strengthen, complément and support the current self-regulatory institutions”.

It is also disturbing that the ANC does not view itself as a political party ‘in the bourgeois sense’ but as a revolutionary liberation movement with an uncompleted mandate. It describes itself as a “hegemonic organization” that is not just the “leader of itself, nor just of its supporters”. It believes that “History has bequeathed on it the mission to lead South African society as a whole in the quest for a truly non-racial, non-sexist and democratic nation.”

In constitutional democracies it is the voters and not history that give parties the mandate to govern.

The protection, promotion and enforcement of human and peoples’ rights.

In terms of section 7 (2) of the Constitution, the state is obliged to respect, protect, promote and fulfil the rights contained in the Bill of Rights. On paper therefore, it can be said that our constitutional dispensation complies with the third test of constitutionalism.

Unfortunately, this has not been the experience of many South Africans. Whether the deficiencies arise from lack of capacity or resources, or from inadequate policies and administration, is a question for a more political debate. However, there is little doubt that our people do not, in practice, enjoy many of the key rights guaranteed by the Constitution:

• According to the UNDP we are the 12th most unequal society in the world - despite the assurance of our right to equality. And we have been getting more unequal since 1994;

• Our right to life is seriously threatened by rampant crime and the murders of more than 250 000 people since 1994;

• The right to choose a trade, occupation or profession is undermined by the reality that almost 40% of black South Africans are unemployed;

• Our property rights are at this very moment under unprecedented threat arising from the new Expropriation Bill;

• Our right to health care has been seriously prejudiced by a failure to provide adequate medical services and by the late response to the HIV pandemic;

• The rights of children are abused on a daily basis by violence, rape and exploitation;

• We have failed dismally to ensure the right to education. According to recent estimates, only 42 000 of the 1.19 million children who entered the school system in 1995 and who matriculated last year, were functionally literate and ready for proper university education; and

• The constitutional assurance that all languages would enjoy parity of esteem is just not being realized - not only for Afrikaans-speaking South Africans but by speakers of all our other indigenous languages as well.

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It is apparent that while the structures of the South African Constitution remain in place and theoretically comply with the three tests posited, there is much work to be done before it can be said that constitutionalism has taken root and is flourishing in South Africa. While the courts and the press remain free and independent there is still hope that this can be achieved.

Fortunately, it is not only politicians who determine the fate of nations. Religious and traditional groupings, civil society organizations, the business sector and the international community, all have a role to play in promoting constitutionalism in South Africa. While the politicians are at least paying lip service to the values of the Constitution and to the rule of law it is incumbent upon all persons of goodwill to join in promoting the Constitution as the best means available for achieving a prosperous and peaceful future for all who live in this lovely land.