LAW MATTERS

REMEMBER when President Jacob Zuma tried to keep former chief justice Sandile Ngcobo on as chief justice longer than the constitution allowed and there was a big fight about it, which went all the way to the Constitutional Court?

The main issue in that case was whether section 8(a) of the Judges Remuneration and Conditions of Employment Act was constitutional. One of Zuma’s objections to the constitutional challenge was that section 8(a) had been sitting on our statute books since 2011, and no one had complained about it up to that point.

The argument seemed to convince a lot of nonlawyers, as though there was something sinister or hypocritical in the case being made at that particular point. But the truth is that there are plenty of laws hanging around that are either manifestly unconstitutional, or probably unconstitutional, or possibly unconstitutional.

Some of these are remnants from the apartheid era, but not all. Of course, our legislature should not pass unconstitutional laws. But once a law is passed, its constitutionality will be tested only once it is used. So now we have had all this unprecedented drama in Parliament and, as we can expect in SA, all manner of rules, policies and laws are already going to court to be tested. And that’s okay, but we see the same argument — “why is this being raised only now?” — creeping into these cases.

So when the South African National Editors’ Forum and media houses challenge the constitutionality of Parliament’s Policy on Filming and Broadcasting of Parliament, secretary of Parliament Gengezi Mgidlana says the policy has been in place since 2009. “There has never been any suggestion that the policy is irrational and undermines the interests of the applicants and the public,” he says.

But that is because — at least as far as I know — there has never been a need before to rely on the policy, in particular the part that says the audio and visual feed provided by Parliament must not show “grave disturbances” or “unparliamentary behaviour”. When these things happen, the policy says, the cameras must remain on the speaker.

It would be interesting to know how many other incidents of “grave disturbances” or “unparliamentary behaviour” have passed us by (with us happily oblivious). But I suspect that none have.

I suspect the reason we are hotly debating the policy’s constitutionality is that it is only since the Economic Freedom Fighters have come into Parliament that it has been used.

Happily for Mgidlana, this is not his only argument, because I would bet the argument will be dispatched by the courts as summarily as was done in the chief justice case.

Although most laws regulate everyday conduct, some are there as a safety net, to resolve things when it all gets ugly. So when hitherto unused laws get dragged out of obscurity and dusted down, it is also a red flag.

It depresses me that the society envisaged in our constitution — and for which so many liberation heroes gave their lives — has been reduced to legal squabbling about laws that, if all were well, should be gathering dust in our statute books.

The law authorising the speaker to call the police into Parliament to arrest someone was probably drafted with a bunch of crazies in mind (think of those far-rightists who stormed the negotiations at the Convention for a Democratic SA in Kempton Park).

Why are we even debating whether the law can constitutionally be applied to MPs? It just should not happen in the kind of democracy that is envisaged by our constitution.

Even worse is all this back-andforth and litigation about whether the public protector’s reports are legally binding. I’m not denying that it is a genuine constitutional question. But we should not have to ask it at all.

The public protector is an institution established by the constitution specifically to be the nation’s conscience. A conscience should not need the force of law to ensure compliance. If we were living by the spirit, rather than the letter, of the constitution, the public protector’s findings — legally binding or not — should prompt immediate action.

Of course, she can be wrong in her findings; that is when one will resort to a court.

Also, these legal battles about the letter of the law can only go so far. Even if Parliament’s filming policy is deemed to be acceptable and fine by a court, and even if a court finds that the public protector’s findings are not binding, the law is only the basic, the lowest, standard by which we measure people’s actions.

The spirit of the constitution demands much more.