Reflections From The South: The South African Chief Justice Saga, Rule Of Law And Constitutionalism
Essence of the Rule of Law
In a democracy, the government and elected representatives are required to adhere to set laws and rules in order to govern properly and promote the interests and wellbeing of the people. And in a constitutional democracy, the constitution is the fundamental law; any law, policy or conduct including by a head of state or government contrary to its provisions is invalid. In this regard, Thomas Paine, in his 1776 essay, ‘Common Sense’ wrote: “For as in absolute governments the King is law, so in free countries the law ought to be the King; and there ought to be no other.”
The rule of law in essence therefore, keeps any free and democratic society viable, ensures good governance and the advancement of human rights, and helps to promote peace, prosperity and security in society. The Preamble of the 1948 Universal Declaration of Human Rights accordingly provides that it is “essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
On benefits of the rule of law, Heads of State and Government in the 2005 World Summit Outcome document further stated:
“We acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger.”
Adherence and promotion of the rule of law is also one of the objectives and guiding principles of the African Union as per its Constitutive Act which require its Member States of the AU to ‘promote democracy, the principle of the rule of law and human rights.’
In South Africa, partly in response to the adverse effects of rule by law under apartheid and in order to advance democracy and the promotion and protection of human rights and fundamental freedoms; the rule of law and the supremacy of the constitution are some of the key values which the new South Africa is founded upon. The South African constitution in entrenching the rule of law has made it abundantly clear that any law or conduct that is inconsistent with its provisions is invalid.
The South African Constitutional Court has also upheld the respect for the rule of and the supremacy of the constitution in many of its decisions. As early as 1995, the South African Constitutional Court in its judgment in Executive Council of the Western Cape Legislature and Others v President of South Africa and Others held:
“It is crucial importance at this early stage of the development of our constitutional order, to establish respect for the principle that the Constitution is supreme……Our duty is to declare legislative and executive action which is inconsistent with the Constitution to be invalid.”
However, notwithstanding the importance and significance of the rule of law, the challenge in any society – even in constitutional democracies – is the tendency and the temptation for many in power to undermine laws set by society in pursuit of their own interests and agendas. Courts of law and other societal institutions are constantly engaged in a struggle to prevent and discourage the abrogation and undermining of the rule of law and to correct any breach of laws in order to ensure that any conduct in a free society is in line with the law and constitutional provisions.
The failure to adhere to laws and rules of society has been the demise of many societies and democracies. Kofi Annan in his 2005 report as the then UN Secretary General, In Larger Freedom, observed that:
“[I]n many places, Governments and individuals continue to violate the rule of law, often without consequences for them but with deadly consequences for the weak and vulnerable.”
The extension of the term of South Africa’s Chief Justice -implications for the rule of law
In this regard and regardless of the entrenchment of the rule of law in South Africa’s constitutional framework and numerous decisions of the Constitutional Court that have overturned unconstitutional laws passed by the South African Parliament and executive decisions even those made Nelson Mandela; the rule of law recently came under threat when President Jacob Zuma extended the term of the Chief Justice of the South African Constitutional Court on June 3, 2011. The President relied on section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 which gave him powers beyond those provided for by the Constitution.
However, the South African Constitutional Court, in line with its mandate and long tradition of safeguarding the constitution and upholding the rule of law; stood its ground and courageously declared the decision of the President and the law he relied upon as unconstitutional and invalid. The Chief Justice had fortunately also withdrawn his acceptance of the extension of his term a mere two days before the ruling of the Constitutional Court was announced.
In its decision on this matter, the Constitutional Court in Justice Alliance of South Africa and Others v President of [the] Republic of South Africa, held that the provision of the law the President relied upon ‘violated the principle of judicial independence’ and amounted to ‘an impermissible delegation’ of legislative authority by Parliament to the President in violation of the Constitution. The Court in further emphasizing the importance of the rule of law also said:
“The principles of the rule of law, the separation of powers and judicial independence, underscored by international law, are indispensable cornerstones of our constitutional democracy.”
While President Zuma has accepted the ruling of the Constitutional Court and in so doing has helped to protect the judiciary and the integrity of the Constitutional Court in particular; the decision to extend the term of the Chief Justice using a law that is unconstitutional is of concern in relation to the provisions of section 83 of the South African Constitution that puts an obligation on him as the president to ‘uphold, defend and respect the Constitution as the supreme law of the Republic’. This provision thus requires that laws that are enacted and assented to by the President should not be contrary to the Constitution.
The Chief Justice, as the chief custodian of the Constitution, should also not have accepted an extension of his term based on a law that certainly appeared to be unconstitutional and should have consulted his colleagues in the Constitutional Court before doing so. The decision of the Chief Justice in this regard and the embarrassment that this caused him is difficult to understand in view of many of his important decisions on the rule of law. In the case of Affordable Medicines Trust and Others v Minister of Health and Another, he wrote the following on the rule of law:
“The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of our law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entail that both the legislature and the executive “are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.”
What is even more disconcerting however, are the responses by the President and those around him to South Africans citizens and organs of civil society that challenged his decision to extend the term of the Chief Justice and brought the matter to the Constitutional Court.
President Zuma in responding to the court challenge against him accused those who challenged his decision for being motivated by political agendas and of using the office of the Chief Justice as a political football. He also questioned the ten year long silence and failure to challenge the constitutionality of the law he acted upon. The office of the African National Congress Chief Whip in the Parliament in support of the President also questioned whether those challenging the President’s decision were doing so in good faith and even went further to state that there were no similar challenges when the same law was used to extend the term of the former two Chief Justices of the Constitutional Court, Arthur Chaskalson and Pius Langa. The Office of the ANC Chief Whip also regarded the criticism and challenge to the President’s decision as politicization of the issue that would only serve to undermine the integrity of the Chief Justice and his office.
The response of both the President and the Office of the ANC Chief Whip is unfortunate and has the intended or unintended consequences of discouraging and even intimidating South African citizens from exercising their democratic right to question decisions made on their behalf by their elected representatives and their constitutionally entrenched human right to approach courts of law for the resolution of appropriate disputes.
In response to concerns over the length of time that has passed before challenging the constitutionality of laws passed by parliament and the desirability of such challenges, the Constitutional Court way back in 1995 addressed this point and made it clear that the passage of time, even ten years in this case, cannot cure a piece of legislation of its unconstitutionality and hence its invalidity. The Court Constitutional in this regard in Executive Council of the Western Cape Legislature and Others v President of South Africa held:
“Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it was carried out.”
The legal advisers of both the President and the Office of the ANC Chief Whip ought to have been familiar with this decision of the Constitutional Court and they would have been able to save both the President and the Chief Whip from unnecessary embarrassment, to say the least.
On the suggestion by the Office of the ANC Chief Whip that similar extensions for the former Chief Justices of the Constitutional Court using the same law were not challenged in the past and thus insinuating unfairness on the part of those challenging the extension of the Chief Justice’s term; the Constitutional Court in its ruling on the extension of the term of the Chief Justice made it clear that ‘this is the first time section 8(a) [of Judges’ Remuneration and Conditions of Employment Act 47 of 2001] has been used by the President [to extend the term of any Chief Justice].’ This is something the Office of the ANC Chief ought to have known and should have at least consulted the office of the President before issuing a misleading statement to the public.
Both the President and the Office of the ANC Chief Whip should have accepted the constitutional court challenge in a gracious manner that would have been in keeping with their constitutional obligations to uphold the constitution and in line with the provisions and spirit of the oaths they have both taken to promote the well-being of South Africa and its people.
This was not the first time that a decision of a South African President or a law enacted by Parliament and signed by the President has been challenged in the Constitutional Court. Amendments of the Constitution have equally been turned down by the Constitutional Court for not complying with the Constitution. The anger, irritation or shock displayed by both President Jacob Zuma and the ANC Chief Whip display a worrying development and intolerance and show a lack of appreciation for the rule of law and respect for the right of any South African citizen to question and even challenge any decision taken by the President or any law enacted by Parliament. The ‘perplexed and totally astonished’ reaction of the ruling party, the African National Congress even after the ruling of the Constitutional Court has also not been helpful and exemplary for an organization with a long history of struggle for democracy, human rights and the rule of law.
The legislation that President Jacob Zuma relied upon for the extension of the term of the Chief Justice was passed in 2001. The government in terms of the principles of the rule of law and the supremacy of the South African constitution should, together with Parliament, regularly review the constitutionality of laws that have been passed and not wait for organs of civil society to challenge these laws at a great cost to the national budget. The constitutional challenge could also have been avoided if the power and obligation of the President – President Thabo Mbeki then – to assent to all laws passed by Parliament had been exercised properly or if the law in question had been referred to the Constitutional Court for a decision on its constitutionality before it was assented to.
The ruling of the Constitutional Court in this matter should hopefully help the office of President Jacob Zuma and the ruling party, the African National Congress, to better appreciate and accept the fact that in a democracy and in a constitutional democracy such as South Africa, citizens have the right to challenge conduct, laws and policies of their own government and that those who have been elected to represent the people should graciously accept such challenges in the spirit of entrenching democracy and constitutionalism and in respect for the rule of law.
The acceptance by President Jacob Zuma of the ruling of the Constitutional Court that goes against his decision is a positive response which will certainly contribute to the much needed respect for the rule of law and the strengthening of South Africa’s constitutional democracy. His decision should hopefully influence those around him, the people of South Africa and Africa in general, to respect and support institutions of democracy, like the courts of law, that are meant to entrench democracy, respect for human rights and the rule of law and to question and challenge decisions made by their governments where necessary and appropriate.
The courage shown by the Constitutional Court in its ruling made in the face of opposition and adverse response to the constitutional challenge of the law used by the President to extend the term of the Chief Justice and a ruling that would directly or indirectly affect the Chief Justice- their own brother so to speak, should be commented. This was indeed an exercise of judicial authority without fear or favor which should inspire courts of law and judges in the African continent to display similar courage in the much needed fight for justice and respect for the rule of law.
South African citizens, who through their various civil society organizations brought the constitutional court challenge against the decision of the President of South Africa and the law he relied upon should also be commended for their courage in doing so and for not buckling against a strong opposition from the ruling party, the African National Congress, and the President Jacob Zuma himself. Their conduct and courage should inspire and give courage to many human rights defenders all over the African continent – many of whom face much opposition and brutality in their struggle for democracy, human rights and the rule of law.
By Tseliso Thipanyane
Tseliso Thipanyane, independent consultant on human rights, democracy and good governance and former chief executive officer of the South African Human Rights Commission. Tseliso is Director-Editorial and Marketing at AfrobeatRadio. He can be reached at email@example.com.