Early this year, the Centre for Research on Democracy (CREDO) at Stellenbosch University launched a nationwide essay competition open to undergraduate students attending any South African university to encourage the study of democracy by African students and academics. Many brilliant pieces of work were submitted, but there can only be one overall winner – this fabulous essay by Terique Carim. To read the full length essay, go here. For more information about the prize go here – and make sure to look out for future competitions for the whole continent!
South Africa’s Constitutional Court is no stranger to political involvement. At inception, it was tasked with certifying the nation’s ultimate political document. It played a key role in promoting national reconciliation by serving as an impartial arbiter in a turbulent transition period. A symbiotic relationship naturally emerged between the Court and the newly empowered African National Congress (ANC): the Court helped allay fears surrounding the ANC’s dominance by demonstrating its willingness to rule against the government. Meanwhile, the new government legitimised itself by ensuring and respecting the Court’s independence.
In a word, the Constitutional Court represents South Africa’s surest break from the system of parliamentary sovereignty that facilitated apartheid’s intense cruelty and oppression. No longer do courts function to enforce “any encroachment [Parliament] chooses [to make] upon the life, liberty or property of any individual subject to its sway”. Yet unprecedented attacks on the judiciary from the ruling party—not unique to South Africa—make relevant today a defence of the Constitutional Court’s continued involvement in political issues.
Countering the counter-majoritarian difficulty
With a view to creating “a culture in which every exercise of power is expected to be justified”, South Africa’s Constitution confers broad powers of judicial review on the Constitutional Court. A brief survey of its provisions confirms this: courts must declare invalid any law or conduct inconsistent with the Constitution, and the Constitutional Court is entrusted to rule finally on the constitutionality of legislation and presidential conduct. Evidently, encroachment into the domain of other branches is not only countenanced but, in certain circumstances, mandatory. Therefore, to defend the Court’s political involvement requires first a justification of its constitutional basis to do so.
The chief criticism of judicial review, generally expressed through the “counter-majoritarian difficulty”, is its empowerment of unelected judges to override representative decisions. Look at what happened, opponents of judicial review say, when the US Supreme Court struck down 170 statutes regulating labour based on the Justices’ ill-conceived insertion of their own economic conceptions into a vague constitutional protection of liberty.
Waldron argues that political equality—conceived as affording each citizen “the greatest say possible compatible with an equal say for [everyone else]”—is best guaranteed by reasonably functioning legislatures that respect rights. Such legislatures, Waldron asserts, will give legitimate, if not always correct, answers to society’s divisive questions. Conversely, because judges (generally) are not electorally accountable, their legitimacy to make such decisions is comparatively much lesser.
But even within a society with broad respect for rights and a well-functioning legislature, political equality can easily erode. Consider the following example: Reasonable people in a society interpret the right to liberty differently. Some think it allows anyone to contribute freely to political campaigns. Others think in such a context the right to equality carries more importance; financial contributions to political campaigns should not exceed a certain limit, otherwise the less wealthy are disadvantaged. The legislature, acting in good faith, may decide in favour of the first group. Even if this result is legitimate, it undermines fundamental premises of democracy, such as equal concern and moral independence. The wealthier you are, the more you can influence elections—such as by financing advertisements or public appearances. The moral independence to seek office without monetary entanglement becomes effectively unworkable.
A defender of Waldron’s reasoning might contend that the legislature in this sketch does not adequately respect equality. If so, Waldron’s reasoning imposes a particular view of respect for rights on legislatures. Is that not exactly what constitutionalism, buttressed by judicial review, does?
Besides, if it is even partly correct that judicial review serves to maintain political institutions in working order, Waldron’s reasoning would in practice deny an ailing government system any benefits of judicial review when most needed. For countries with a history of state-sponsored human rights abuse—South Africa, Germany, and Japan come to mind—discarding judicial review merely because the country has come to respect rights is “like throwing away your umbrella in a rainstorm because you are not getting wet”.
Apart from this, Waldron makes a convincing Kantian argument that political participation by ordinary citizens is an end in itself—and not merely the means for legitimate decision-making. This way, each citizen’s equal value is emphasised. But the same argument can be made for judicial review. Court cases are brought by citizens—and this too is a form of political participation. With equal access to courts, minorities can better raise issues with legislation not foreseeable in the drafting process—various movements in South Africa demonstrated this. Courts offer a focus on principles that legislatures often sacrifice for political compromise.
But processes aside, why should courts, and not legislatures, have final say on political issues?
Dworkin offers a useful answer: democracy imparts citizens with “equal concern and respect”. He argues that, if majoritarian decision-making aims to confer equal status on citizens, courts are justified to step in when majoritarianism fails to treat citizens with equal concern. South Africa’s Constitutional Court exemplified this by directing Parliament to afford same-sex couples a right to marry in 2005—extending equal concern to those couples despite popular opposition.
However, Waldron argues, while legislatures can discuss moral issues openly, courts obfuscate them in legalistic discussions of precedent and other formalities. This holds little weight for South Africa. Firstly, while parliament might overlook a pertinent issue, courts are obliged to hear issues brought before them. Secondly, just as courts have a procedure to follow, so does parliament, and it is equally likely in both for important matters to get bogged down in bureaucracy. And lastly, legalistic discussions themselves have moral value. The choice whether to apply precedent, for example, is really a choice between the value of certainty in the law and the value of overruling that precedent.
Justice under fire
Recent comments of top officials mark a pronounced shift from the ANC’s initial support for the Constitutional Court’s foray into political matters. Facing a recalcitrant dominant party, the Court’s constraining role bears particular importance.
Concerning patterns that place “democratic constitutionalism at risk” have been identified in nascent democracies seized by dominant-party rule. Issacharoff puts it crisply: “Without rotation in office, the three ‘C’s’ of consolidated power take hold: clientelism, cronyism, and corruption.” These pathologies are evident in South Africa. Over 70% of South Africans perceive corruption to be on the rise. As early as 2009, Choudry observed the “colonisation of independent institutions meant to check the exercise of [its] political power”. With an executive “unlikely to be effectively constrained by a legislature controlled by the same dominant party”, the judiciary is left as the only meaningful restraint.
Emerging democracies much like South Africa have confronted dominant party rule through their constitutional courts. Take Colombia for example, whose Constitutional Court struck down as undemocratic a constitutional amendment seeking to allow the President a third term.
The South African Constitutional Court’s political involvement evinces a similar effort. The Court has invalidated legislation disbanding an independent crime investigation body and set aside President Zuma’s questionable appointment of a top prosecuting official. Such intrusions into the political domain have been criticised. But I think this reach is justifiable on two counts.
First, our constitutional commitment to justify every exercise of public power creates a right for all citizens to an accountable and representative government. It is dangerous for courts to abdicate from this responsibility. The US Supreme Court illustrated this well when, in 2019, it announced it had no power to invalidate partisan gerrymandering in state electoral maps, even though these maps were by the Court’s own admission “incompatible with democratic principles”. The decision was divided along ideological lines.
This ties into the second reason. Because what constitutes a political matter is “always blurred”, whether a court engages in politics is merely a matter of strategic semantics. As the US Supreme Court demonstrated, refusing to be political can be political.
In any event, the role of courts is institutionally limited. Their membership and the enforcement of their decisions depends on the other branches. Recall the US cases striking down labour regulations in the early 20th century. When President Roosevelt began implementing his post-Depression economic programmes, the Supreme Court stood in his way. In response, Roosevelt threatened to reform the court, which subsequently relented.
Mendes speculates that South Africa’s Constitutional Court employs “esoteric” decision-making to constrain the ANC’s political excesses without being overt. But this tactic only works if the Court offers convincing legal reasons for its politically influential decisions. When it does not, opponents of the Court are at large to characterise its work as an undisciplined power-grab. The Court cannot afford this erosion of its moral authority.
Addressing the Justices at the inauguration of the Constitutional Court, President Mandela prophetically called on them “to stand on guard not only against direct assault on the principles of the Constitution, but against insidious corrosion”. In the face of unprecedented aspersions on the judiciary, fulfilling this duty continues to be crucial to the survival of South Africa’s constitutional order.
Terique Carim (@IIceCarim) is a third-year law student at the University of the Witwatersrand.
