Has our constitution effected real change?

THE words of Jaques to Rosalind, in William Shakespeare’s As You Like It, came to mind once again as a judicial decision was made that would have political consequences for our country.

Jacques, a melancholic traveller, tells her: “I have neither the scholar’s melancholy, which is emulation; nor the musician’s, which is fantastical; nor the courtier’s, which is proud; nor the soldier’s, which is ambitious; nor the lawyer’s, which is politic…”

In trying to explain his own unique Achilles’ heel to the heroine, Jaques identifies for us the weakness of lawyers: politics.

Shakespeare would not be at a loss in South Africa for finding lawyers, and members of the judiciary in particular, who have had influence, maybe even undue influence, on our country’s history and its democracy today.

While they later proved too regressive, the thinking behind Thomas Sankara’s establishment of the People’s Revolutionary Tribunals in Burkino Faso was precisely so that there was seen to be a break with the judicial system of the previous order. The thinking was that the judiciary had to be transformed so that it was congruent with the values and principles espoused by the new dispensation.

As South Africa negotiated its new dispensation, it chose a constitutional democracy based on the model used by the US, rather than a majoritarian model, as is found in the UK. The apartheid rulers knew the power of a parliamentary supremacy and therefore chose to demand a consociational model, as articulated by the Dutch political scientist, Arendt Lijphart, which was ultimately about power-sharing rather than its antithesis, the rule of the majority.

In ensuring that South Africa became a constitutional democracy, those who negotiated the settlement ascribed to the judiciary, rather than the people through the legislative and executive means, the determination of what was to be permitted in our democracy. The people are therefore no longer supreme. The people are not governing.

As result, while the separation of powers is the foundation of any modern, democratic state, one of the powers inevitably usurps a role that could be seen as the first among equals. Yet that power remains open to be kept in check by the other two and is therefore not open to abuse.

For example, recently in the UK, which is based on a parliamentary system, the courts ruled that the Brexit vote, despite going to a general referendum, had to be sent to parliament for a vote, thus contradicting the executive and keeping it in check. While the people had spoken, parliament remained supreme.

In his own bid to ensure the protection of the powers of the executive and government to pursue its policies independently, though based on an electoral mandate, former President Thabo Mbeki, in his Letter from the President in March 2001, wrote:

“It is unfortunate that this matter of human rights, human dignity and life itself, should have ended up in our courts, as though it would ever constitute an act of justice if we were to adopt laws that make it difficult for us to achieve the objective of health for all. Nevertheless, as before, we will respect whatever decision is ultimately handed down by our judiciary.”

While President Mbeki and his administration went on to respect the outcome of that judicial decision in the High Court and later in the highest court of our land, the Constitutional Court, on treatment for those who are HIV positive, he would be the first to admit the judgement had a direct impact on determining the extent of the policies pursued now by both the executive and the legislature.

Even more so, given his own second administration’s appealing of the Nicholson judgement, President Mbeki went on to write in early 2016:

“Thus did Judge Nicholson give a judicial stamp of approval to an allegation that some had sustained for some time that I and others in government were part of a ‘political conspiracy’ which had interfered with the NPA falsely to charge Jacob Zuma‚ an allegation which even the ANC NEC as a whole had rejected.”

As with the ConCourt decision on public health policy, President Mbeki would be familiar with the dire political consequences of both the Squires judgement, which he somewhat misused, and that of the Nicholson judgments. Both illustrated the near catastrophic role our courts could play in the political landscape of our country. Indeed, our lawyers suffer from no small bout of melancholy for the political.

We have read with interest the reasons given by Judge Bashir Vally for his order compelling President Jacob Zuma to provide the rationale behind his latest cabinet reshuffle. Some have suggested it was foreseeable the court would make such a ruling, given that the head of the executive derives this exclusive right to appoint and appoint members of the executive at his prerogative. It is the constitutional democracy that again allows for such a court ruling.

But is politic this lawyer’s melancholy? Judge Vally has a history in the trade union movement and labour law primarily. We may suggest he has handed down some progressive judgments in the past, particularly pertaining to the silicosis class action and maintenance order against Steve Hofmeyer.

Yet #FeesMustFall activists would know it was Vally who granted Wits University an interim interdict allowing the university to engage in clampdown measures which seriously curtailed the activism of student and academics. Activists were prevented from engaging in non-violent protest activity such as occupying Senate House, offices and lecture theatres.

Ironically, Judges Matter, a website which provides information on present and future judges, quotes

We must ensure that interrogating our constitutional dispensation never becomes a taboo

Vally as saying that “One never knows how these decisions are made”, in respect of who is allowed to act as a judge; usually a helpful perquisite in getting on to the bench. The site reports that Vally did not have an easy time with the Judicial Services Commission during his interview.

One has no doubt that, like President Mbeki before him, President Zuma will not hesitate in respecting, as he has done before, the court decision.

What we have to question is whether the constitutional democracy that allows for all of these decisions, even at times against the wishes of the people, is what South Africans agree is the covenant that binds us.

A question social commentators, and certainly those in academia, should be reflecting on is whether this document, meant to unite all of us, has resonance in the lives of most South Africans, or whether it speaks more to the compact made by the elites during the early 90s. Elites that we saw participating again in recent days in the ‘national dialogue initiative’.

Some 23 years after democracy, we must be able to have a conversation in this country as to whether the constitution itself, as a binding document, has effected real change in the lives of those who continue to suffer the injustices of the past.

For just as lawyers, and dare we suggest judges, must be pointed out for their melancholy which is politic, so too we must ensure that interrogating our constitutional dispensation never becomes a taboo.

Seale teaches politics and international studies at Rhodes University.

NEXT Tuesday, health ministers from around the world will gather in Geneva to vote for a new director-general of the World Health Organisation (WHO). It’s a hugely important election for the whole of Africa and the world.

The WHO determines how the international community responds to the growing threat of deadly diseases and pandemics, and helps people everywhere get access to the health care they need. Huge progress has been made in making the world a healthier place… Major killers like malaria and polio have been dramatically reduced. And last year, malaria deaths were halved in six high-burden countries.

But the WHO also needs an upgrade, so it can respond to the challenges the world faces, better and more quickly. The election of a new director-general is a real opportunity to see positive change.

Our world is challenged by a changing climate, violent conflict, persistent poverty and poor nutrition. And of course, none of us are immune to killer diseases. The Ebola outbreak in West Africa showed how diseases can devastate communities, and have a lasting impact on countries.

Worryingly, we have just seen this terrible illness re-emerge in the Democratic Republic of Congo. However, the swift and decisive action by the government of the DRC to ask for help will undoubtedly save lives.

Leading the global fight against Ebola in 20014/15 was UN special envoy, Dr David Nabarro. He is now running in this election to become the WHO’s director-general. Through my work as a trustee of the GISAID (Global Initiative on Sharing All Influenza Data) and as a patron of the WCPRC (World’s Children’s Prize for the Rights of the Child), I have been exposed to the work that Nabarro has done in support of Africa.

Nabarro’s experience is unrivalled – he has spent over 40 years in international public health as a medical doctor, educator, international public servant and diplomat. He has worked in over 50 countries including Zambia, Zimbabwe, Liberia, Kenya, Mali, Nigeria, Sierra Leone, Senegal, Tanzania, Mozambique and South Africa. He has worked with farmers and food processors, in clinics and in hospitals.

I know that he understands there is huge potential – for agriculture and sustainable energy, for industry and services, for tourism and ecology. His work in Zambia, for example, was mainly on nutrition, working with the government and civil society on the Scaling Up Nutrition programme.

A healthy society also means a healthy economy, which is vital for the future of many countries across Africa. And whoever runs the WHO must also have proven experience in responding to emergencies and infectious disease outbreaks, such as Ebola and malaria.

He or she will need to command the respect of many thousands of hard-working and dedicated health

In a career that spans more than 40 years, he has done good work on the continent