Wednesday, November 22, 2006

Constitutional Court pro ANC?

Is the Constitutional Court pro-executive and thus pro ANC? Because almost all of the 11 judges appointed to the Court in 1994 were ANC members or sympathizers, even early on there was a perception amongst lawyers and the chattering classes that the CC was too deferential to the legislature and executive.

This perception intensified after the public relations disaster that was the floor-crossing case.

However, to say that the CC is pro-ANC is, in my opinion, just plane wrong.

Richard Calland, in his new book Anatomy of South Africa: Who Holds the Power?, gets it about right, I think, when he says:

“the court opted to take a prudent approach …., anxious not so much to be deferential as to be gradualist in forging a careful, long-term strategy for the defence of the Constitution.”

The CC has tried (not always successfully) to walk a tight-rope of pragmatic idealism. One the one hand it sees itself as champion of the poor, marginalized and downtrodden. On the other it is acutely aware that it needs to build up legitimacy, a kind of political currency deposited in the bank, so to speak.

They need that currency because they know they will have to spend it in future battles that will be of fundamental importance for the protection and preservation of the constitutional state itself. They fear newspaper headlines like "Constitutional Court soft on crime" or "Constitutional Court legalises prostitution/dagga".

This anxiety is one way, I think, to explains Prince (endorsing the criminalisation of the use of dagga, and therefore of the Rastafarian religion), Jordan (declining to find sex or gender discrimination in the criminalisation of sex workers but not their clients) and, more controversially Volks v Robinson (endorsing legislation that excluded non-married heterosexual partners from claiming maintenance from their partners estates).

Another way is to argue that some of the judges are just plain conservative when it comes to social issues (homosexuality excluded). In a long line of cases the majority of the Court has failed to see or to understand the scope of the harm inflicted by discriminatory practices.

The normative framework from which some of the judges operate seems to make it impossible for them to see, for example, that if you criminalize the sex workers (almost always women) and not the clients (almost always men) you are demeaning all women – not only sex workers. You are saying that women must be punished if they do not conform to the sexists double-standard around sexual behaviour.

Even the sexual orientation cases can be explained in relatively conservative terms. The Court ordered same-sex marriage because they see marriage as one of the basic building blocks of an ordered and respectful society. By allowing same-sex couples to marry, one is allowing them to become normal, tamed, safe members of the community. What will happen to the rights of unmarried" same-sex couples now that marriage is open to them, is a troubling question.

Calland suggest there may be two main factions in the court: social conservatives and more radical progressive ones. But in 2009 the three most socially progressive judges – Sachs, O’Regan and Mokgoro – will retire and that will be the end of the socially progressive court.

What will remain is a court that will fight for the Rule of Law (as they see it) and for the rights of poor, mostly black, people.

1 comment:

Michael Osborne said...

Pierre, I found your insights on the CC insightful. Social progressives are right to rue the impending departure of Sachs, Mokgoro and O’Regan JJ’s. (No coincidence that 2 out of these 3 are women).

To return to the question articulated in the title of your posting -- whether or not the Court can be called an ANC-aligned institution -- I agree that the suggestion that it is so is misguided. The decision in the floor-crossing case, to anyone who takes the trouble to read it, is readily justifiable quite independent of any political allegiance.

That said, there is an irony in the social conservatism of some of the Court’s decisions. One might say that, to the extent the Court has manifested conservative tendencies, the Court has played a counter-countermajoritarian role. Many who vote for the ANC are considerably more conservative, socially speaking, than the ANC leadership. To that extent, one might say that when the Court puts a brake on progressive tendencies within the ruling party (or at last the leadership thereof), it is pushing progressive public policy back towards the preferences of the solid majority. As you point out, though, the sexual-orientation cases represent the great exception to this pattern. (Makwanye represents another example of a radically countermajoritarian decision.)