New Book Upholds the Constitution Amidst South African Politicians and Judges’ Clash

In 1994, South Africa became a democracy founded on a supreme constitution. The constitution’s preamble affirms the nation’s quest to establish a society based on democratic values, social justice and fundamental human rights.

The constitution clearly envisioned political accountability and judicial review of executive and legislative actions. But, almost three decades on, this vision is increasingly under virulent criticism by populist politicians.

Dan Mafora’s new book, Capture in the Court – In Defence of Judges and the Constitution, likens the rising rebellion against judges and the constitution to “judicial capture”. He labels this rebellion “anti-constitutionalism” and explains the key factors behind “the less-than-happy relations between the courts and politicians”.

Mafora writes from an insider-outsider perspective. He is a senior researcher at the non-profit Council for the Advancement of the South African Constitution, an ex-corporate lawyer, and a former clerk in the Constitutional Court of South Africa.

As someone who has taught the South African bill of rights and written about constitutionalism in Africa, I understand the significance of this book.

Although its title seems sensationalist, it is justified by its depressing evidence. As Mafora states:

It is now not an uncommon occurrence for a former president to claim that we are under a judicial dictatorship, or for a senior leader of the official opposition to claim that the Constitutional Court leaked a judgment to the ANC …

The ANC (African National Congress) has governed the country since 1994.

In the first decade after the 1994 democratic elections, South Africa was hailed as a beacon of constitutionalism. This is the idea that governmental authority is determined by a supreme constitution enforced by judges. So how did the country fall from this heady height?

Rise of anti-constitutionalism

Mafora attributes the fall to four interwoven elements: lawfare or the “steady judicialisation of politics” misinformation campaigns increased public visibility of lawyers and judges the sluggish pace of socio-economic transformation.

Populist politicians claim that judges constrain socio-economic change by protecting neoliberal economic policies, notably land laws.

Since lawfare and misinformation underlie the book’s theme of “judicial capture”, they deserve a closer look.

Lawfare is commonly understood as the strategic use of legal proceedings to intimidate or restrict the agency of an opponent. In the post-apartheid era, it refers to

the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial [non-judicial] constitutional safeguards.

Mafora traces lawfare to the ANC’s failure on two counts. One was the failure to choose between constitutionalism and “people’s power” during the 1990s negotiations that ended apartheid. The other was its failure to fully promote constitutionalism afterwards. It ideologically linked “people’s power” to its National Democratic Revolution. This Soviet-inspired concept aimed at realising a social system between capitalism and communism.

The ANC was happy with constitutionalism as long as its outcomes coincided with the goals of the National Democratic Revolution. Failing this, it tried unsuccessfully to manipulate the judiciary to realise these goals. In Mafora’s words,

Today’s ANC, frankly put, does not truly believe in the idea of a supreme Constitution to which it is bound and under which it ought to function.

Using many examples, he argues that the ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attacks by politicians. Misinformation plays a huge role in these attacks.

Misinformation: Information wars occur through chat bots and fake social media handles that spin the narratives of their creators. Misinformation creates doubt over conflicting narratives. It breeds mistrust in the judiciary, especially when judges’ decisions appear to contradict the public’s commonsense understanding of issues.

The unfortunate result is a perception that the courts rarely act in the interest of the masses. This encourages anti-constitutionalism and loud noises for a return to (apartheid era) parliamentary supremacy.

So, what is the panacea?

In defence of constitutionalism

Mafora rightly regards constitutionalism as integral to democratic governance. It underpins

multi-party democracy supremacy of the bill of rights primacy of the rule of law judges’ power to review legislative and executive conduct with due respect for separation of powers and cooperative governance.

He takes pains to explain these legal concepts, hoping that doing so will improve

the low level of constitutional literacy among South Africans, [which] renders them vulnerable to both misinformation and disinformation.

Interestingly, Mafora attempts to debunk accusations that the constitution is colonial. He analyses two schools of thought.

The first holds that the common law is colonial because it was “received” into South Africa through colonial conquest.

The second says the common law is colonial also because it is rooted in European legal tradition.

Mafora thinks that for law to still qualify as colonial, it must reproduce the inequitable relations that defined “colonial law, administration and experience”. He argues that Roman-Dutch law, which was almost entirely private law, lost its colonial baggage in South Africa.

He is right to condemn how public officials use decolonisation for political gains. But in my view, he seems to misunderstand the nature of South Africa’s constitution.

As I have argued elsewhere, colonial patterns of power persist. These make Africans cultural and intellectual clones of Europeans. In this context, is the constitution not part of the Roman-Dutch law, which emerged from European culture?

A Eurocentric constitution

Mafora fails to point out how the bill of rights, the cornerstone of South Africa’s constitution, was inspired by the 1948 Universal Declaration of Human Rights. Crudely put, the declaration symbolised western nations’ reaction to the second world war and centuries of violent conflicts. With zero indigenous African input, it represented western legal culture.

Significantly, South Africa’s constitution claims authority over African customary laws and the colonially imposed European laws regarded as the common law. But given its intellectual roots in European laws, the constitution’s authority over the common law is like regulating itself. So, in my view, the constitution is part of Roman-Dutch law, and therefore part of the colonial heritage.

Mafora’s book is nevertheless important for understanding and managing the relationship between judges, politicians and the constitution. It is timely because South Africa is facing an existential crisis of service delivery, which belies the post-apartheid optimism of good governance.

Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western Cape

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