tag:theconversation.com,2011:/global/topics/constitutional-democracy-42127/articlesConstitutional democracy – The Conversation2023-10-23T18:59:36Ztag:theconversation.com,2011:article/2162042023-10-23T18:59:36Z2023-10-23T18:59:36ZGOP’s House paralysis is a crisis in a time of crises<figure><img src="https://images.theconversation.com/files/555378/original/file-20231023-25-n0skbs.jpeg?ixlib=rb-1.1.0&rect=19%2C0%2C4341%2C2903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's trouble under the U.S. Capitol dome. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/dark-government-royalty-free-image/1181743541?phrase=US+house+of+representatives&adppopup=true"> iStock / Getty Images Plus</a></span></figcaption></figure><p><a href="https://www.npr.org/2023/10/23/1207933406/the-house-is-without-a-speaker-nearly-3-weeks-after-kevin-mccarthy-was-ousted">House Republicans fired one leader</a>, Kevin McCarthy, and have spent almost three weeks trying unsuccessfully to choose another to succeed him as speaker of the House. That’s left the U.S. House of Representatives <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">unable to do its work</a>, paralyzing the entire legislative branch of government, because the Senate can’t pass legislation without a functioning House. </p>
<p>Is this a “constitutional crisis?” Or something less significant?</p>
<p>The speaker of the House of Representatives is <a href="https://theconversation.com/what-does-the-speaker-of-the-house-do-heres-what-kevin-mccarthys-successor-will-have-for-a-job-94884">a powerful position with an outsized role in lawmaking</a>. According to the rules of the House, the speaker is “<a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">the presiding officer of the House and is charged</a> <a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">with numerous duties and responsibilities by law and by the House rules</a>.” </p>
<p>The speaker calls the House to order, refers bills to committees, appoints committee members, rules on points of order and recognizes members on the floor. These duties and responsibilities keep the House engaged in considering and passing bills. </p>
<p>In short, the speaker is critical to the administration of House business. Under the <a href="https://www.senate.gov/about/officers-staff/president-pro-tempore/presidential-succession-act.htm">Presidential Succession Act</a>, passed to supplement Article 2 of the Constitution, the speaker also stands <a href="https://www.usa.gov/presidential-succession">second</a> in line to the presidency, after the vice president, in the event of the president’s incapacity.</p>
<p>For now, the House is presided over by a temporary speaker, U.S. Rep. Patrick McHenry, a Republican from North Carolina, but scholars and experts are <a href="https://www.nytimes.com/2023/10/04/us/politics/patrick-mchenry-interim-speaker.html">divided about whether the House rules</a> allow the person in that role to fulfill all the critical duties of the speakership. Because the situation is unprecedented and because the rules are ambiguous, <a href="https://www.politico.com/live-updates/2023/10/19/congress/jordans-new-plan-00122465">McHenry appears reluctant to exercise</a> anything other than the minimal powers necessary to elect a new speaker.</p>
<p>Thus the House remains in limbo, with action needed as <a href="https://www.cnbc.com/2023/09/30/government-shutdown-live-updates-congress-faces-funding-deadline.html">budget deadlines loom</a> and <a href="https://www.latimes.com/world-nation/story/2023-10-22/israel-strikes-gaza-syria-and-west-bank-as-war-against-hamas-threatens-to-ignite-other-fronts">a war between Israel and Hamas threatens to spread</a> to other fronts. <a href="https://www.researchgate.net/profile/Stefanie-Lindquist-2">As a scholar of both constitutional law and politics</a>, I believe the U.S. could be viewed as in constitutional crisis – a crisis that, if it does not end, could provoke larger crises ahead.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An empty leather chair behind a lectern and in front of an American flag." src="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The chair for the speaker of the House remains empty at the U.S. Capitol in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-chair-for-the-speaker-of-the-house-remains-empty-as-news-photo/1746583947?adppopup=true">Drew Angerer/Getty Images</a></span>
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<h2>What is a “constitutional crisis”?</h2>
<p>The term “constitutional crisis” is largely undefined, although <a href="https://www.vox.com/2019/5/16/18617661/donald-trump-congress-constitutional-crisis">scholars generally agree on a few</a> of its characteristics. </p>
<p>One common factor in most historical events described as constitutional crises is that constitutionally mandated processes for resolving conflict break down or have no ready answers. Typically, constitutional crises emerge when the legislature and the president find themselves in conflict over the legality or wisdom of a particular action or policy. </p>
<p>When the legislature and the president reach such an impasse, one or the other of the branches could exercise force to achieve its preferred outcome. </p>
<p>This applies not only to the U.S. but other countries as well. In the case of Russian President Boris Yeltsin’s confrontation with the Russian Parliament <a href="https://nsarchive.gwu.edu/briefing-book/russia-programs/2018-10-04/yeltsin-shelled-russian-parliament-25-years-ago-us-praised-superb-handling">over the power of the presidency</a> in 1993, for example, Yeltsin deployed the Russian military to attack the Parliament and arrest its members. </p>
<p>In the U.S. in 1832 and 1833, conflict between the federal and state governments led President Andrew Jackson to threaten military force to ensure that federal law would be followed in South Carolina during the so-called “<a href="https://www.britannica.com/topic/nullification-crisis">nullification crisis</a>.” In that crisis, South Carolina claimed that a state could unilaterally block a federal law imposing tariffs on imports. Believing that South Carolina’s actions threatened the union and the constitutional order, Jackson proposed to send federal troops to the state to collect the tariffs. This threat of force ultimately led to South Carolina’s capitulation. </p>
<p>Clearly, the Republican standoff in Congress does not rise to the level of a crisis that might involve military force. Yet to the extent that a constitutional crisis involves the paralysis of government machinery without a readily available solution under the Constitution, the current situation in the House could qualify. </p>
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<a href="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white haired man in a gray suit and bow tie sits and listens." src="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=446&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=446&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=446&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=560&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=560&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=560&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">U.S. Speaker Pro Tempore Patrick McHenry listens as the House of Representatives votes for a third time on whether to elevate Rep. Jim Jordan to Speaker of the House.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-pro-tempore-rep-patrick-mchenry-listens-as-the-news-photo/1746641345?adppopup=true">Win McNamee/Getty Images</a></span>
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<h2>Paralyzed Congress</h2>
<p>Because the speaker is a constitutionally mandated office whose occupant is second in line for the presidency, the role is part of the U.S. constitutional machinery. The Constitution clearly contemplates that a speaker will lead the House, although it does not define their duties, which are determined by the House’s own rules. Those rules have evolved over time to elevate the speaker’s role as central to the lawmaking functions of Congress. And without a speaker, it is not clear that Congress can fulfill its constitutional functions. At the same time, no constitutional remedy exists to solve the current impasse.</p>
<p><a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/">To enact legislation</a>, both chambers in Congress must agree on statutory language and submit the bill to the president for his approval. </p>
<p>Without the House, however, Congress will be unable to fund the federal government, which requires yearly budgetary authorization from Congress for its funding. As the nation’s largest employer, the federal government’s failure to pay its employees’ wages will cause financial disruption to millions, even if retroactive <a href="https://crsreports.congress.gov/product/pdf/IN/IN12251">pay is available afterward</a>. </p>
<p>Critical regulatory agencies that keep water clean, air breathable, roads and bridges safe and the country’s financial system operating fairly and effectively could be stalled in meeting their legal duties to the nation. </p>
<p>Other pressing national concerns, such as the <a href="https://www.washingtonpost.com/politics/2023/10/22/house-speaker-candidates-running/">opioid crisis</a>, will continue without federal legislation to address them. Efforts to support Ukraine and Israel in their battles against Russia and Hamas will be stymied. </p>
<p>A <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">paralyzed federal government paralyzes the nation</a>, with potentially dire national and global consequences to the economy, the environment and U.S. foreign policy. The absence of a speaker – a single individual but the linchpin in Congress – could thus produce a dangerous crisis in our constitutional democracy. </p>
<p>The longer this impasse continues, the greater the threat to the constitutional order.</p><img src="https://counter.theconversation.com/content/216204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The absence of a speaker of the House − a single individual but the linchpin in Congress − could produce a dangerous crisis in America’s constitutional democracy.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1758712023-09-09T12:52:24Z2023-09-09T12:52:24ZMangosuthu Buthelezi: the Zulu nationalist who left his mark on South Africa’s history<figure><img src="https://images.theconversation.com/files/444063/original/file-20220202-19-1fky7gn.jpg?ixlib=rb-1.1.0&rect=5%2C49%2C575%2C442&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chief Mangosuthu Buthelezi speaks in parliament.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p><a href="https://www.sahistory.org.za/people/mangosuthu-gatsha-buthelezi">Mangosuthu Gatsha Buthelezi</a> played a prominent role in South African politics for almost half a century. <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-announces-passing-honourable-prince-mangosuthu-buthelezi%2C-traditional-prime-minister-zulu-nation-and-monarch">He was</a> one of the last of a generation of black South African leaders who influenced the transition from the white minority apartheid regime to a society under a democratically elected government. </p>
<p>Prince Buthelezi (95) was born on 27 August 1928 in Mahlabatini into the Zulu royal family. His mother <a href="https://www.sahistory.org.za/people/princess-magogo">Princess Magogo ka Dinuzulu</a> was the daughter of <a href="https://www.sahistory.org.za/people/king-dinuzulu">King Dinizulu</a>. His grandfather was the prime minister of <a href="https://www.sahistory.org.za/people/king-cetshwayo">King Cetshwayo</a>. So, he was the first-born in line to the Buthelezi chieftainship. </p>
<p>His Zulu identity became the decisive compass for his career in politics, and personified the ambiguities between ethnic identity and national policy. He became the only Bantustan leader who played a significant role in South Africa’s transition to democracy and subsequent politics. Under apartheid <a href="https://www.sahistory.org.za/article/homelands">Bantustans or homelands</a> were the ten mainly rural, impoverished areas where black South Africans were required to live and have nominal “self-rule” and “independence”, along ethnic group lines separate from whites under apartheid. </p>
<p>Buthelezi used his power to combine ethnic particularism with a policy aimed at inclusive national governance opposed to segregation under apartheid. </p>
<p>As Minister of Home Affairs (1994-2004) and MP since democracy in 1994, he remained a relevant political figure with considerable political influence. His political role remains a controversial and heavily criticised example of how a quest for power based on a Zulu identity as regional-ethnic particularism can take a huge toll on lives.</p>
<h2>Under apartheid</h2>
<p>In 1948 Buthelezi enrolled to study history and “Bantu administration” <a href="https://www.sahistory.org.za/people/mangosuthu-gatsha-buthelezi">at Fort Hare University</a>. In 1949 he briefly joined the African National Congress Youth League. He was expelled from the university in 1950 for his political activism, completing his degree at the University of Natal. In 1953 he became the hereditary chief of the Buthelezi clan. </p>
<p>In 1976 he was appointed the <a href="https://www.britannica.com/place/KwaZulu">chief minister</a> of KwaZulu. The area comprised 11 territorial enclaves in the province of Natal. It was a Bantustan under the apartheid state’s policy euphemistically called <a href="https://www.sahistory.org.za/article/history-separate-development-south-africa">“separate development”</a>.</p>
<p>In 1975 <a href="https://theconversation.com/post-election-pact-failure-echoes-of-fraught-history-between-south-africas-anc-and-inkatha-172696">he revived Inkatha ka Zulu</a>, a Zulu cultural movement established by King Dinizulu in 1922. It later became the <a href="https://www.ifp.org.za/our-history/">Inkatha Freedom Party</a>. According to <a href="https://www.britannica.com/biography/Mangosuthu-G-Buthelezi">Encyclopedia Britannica</a>:</p>
<blockquote>
<p>He used Inkatha as a personal power base that systematically mobilised Zulu nationalist aspirations, although his narrow regional and ethnic support base would make his ambition of being national leader difficult.</p>
</blockquote>
<p>His Zulu stronghold allowed him to throw a spanner in the apartheid government’s “separate development” policy, by preventing a declaration of pseudo-independence for KwaZulu. </p>
<p>As he once <a href="https://books.google.co.za/books?id=NcipiPf0tncC&pg=PA142&lpg=PA142&dq=Mangosuthu+Buthelezi:+We+have+our+own+history,+our+own+language,+our+own+culture.+But+our+destiny+is+also+tied+up+with+the+destinies+of+other+people+-+history+has+made+us+all+South+Africans.&source=bl&ots=SUDJvJwodt&sig=ACfU3U3xcligo5RWHbM_x9pkORPIYtv6Og&hl=en&sa=X&ved=2ahUKEwizpKmjwoH2AhXcwAIHHRWLDw4Q6AF6BAgFEAM#v=onepage&q=Mangosuthu%20Buthelezi%3A%20We%20have%20our%20own%20history%2C%20our%20own%20language%2C%20our%20own%20culture.%20But%20our%20destiny%20is%20also%20tied%20up%20with%20the%20destinies%20of%20other%20people%20-%20history%20has%20made%20us%20all%20South%20Africans.&f=false">explained</a>:</p>
<blockquote>
<p>We have our own history, our own language, our own culture. But our destiny is also tied up with the destinies of other people – history has made us all South Africans.</p>
</blockquote>
<p>Adam Houldsworth, in his <a href="http://scholar.ufs.ac.za:8080/xmlui/bitstream/handle/11660/4047/HouldsworthA.pdf;jsessionid=B41C2C6F899271C77B98E5FF9FD35E82?sequence=1">PhD thesis</a> on Inkatha and the National Party, 1980-1989, documents important domestic policy shifts, influenced by Buthelezi’s political manoeuvres. He disputes the view that Buthelezi pursued an opportunistic and unprincipled policy.</p>
<p>Much of the underlying notion in Buthelezi’s position was inspired by the conservative political philosophy of <a href="https://www.masterclass.com/articles/edmund-burke-guide#who-was-edmund-burke">Edmund Burke (1729-1797)</a>. Buthelezi demanded a majoritarian power-sharing system on a national level as opposed to apartheid. He placed his hopes on reformist tendencies emerging from within the National Party.</p>
<p>According to Houldsworth (p. 210): </p>
<blockquote>
<p>Buthelezi sought to improve Inkatha’s prospects by advocating a long and multifaceted negotiating process which would allow for the gradual moderation of African politics and the reconciliation of disparate black groups … Inkatha politics were to an extent shaped by considerations of expedience in its efforts to retain or gain influence in South African politics.</p>
</blockquote>
<h2>Reinventing Zulu traditionalism for politics</h2>
<p>Buthelezi turned his local-ethnic agency into a national policy factor by rejecting the Bantustan principle. This contributed to the growing awareness within the ranks of the more enlightened faction in the ruling <a href="https://www.sahistory.org.za/article/national-party-np">National Party</a> that a post-apartheid scenario needed to be negotiated. </p>
<p>With the <a href="https://www.sahistory.org.za/article/african-national-congress-anc">African National Congress</a> (ANC) becoming an increasingly influential factor in any negotiated solution, while at the same time a threat to his own interests, Buthelezi walked a political tightrope. Considering the exiled ANC as ideologically too left, he advocated the <a href="https://www.deseret.com/1988/6/12/18768341/leader-of-zulus-calls-for-the-release-of-mandela-assails-emergency-rule">release from prison</a> of its leader <a href="https://www.nelsonmandela.org/content/page/biography">Nelson Mandela</a>. Mandela had been jailed for life for sabotage aimed at <a href="https://www.sahistory.org.za/article/rivonia-trial-1963-1964">overthrowing the apartheid regime</a>. Buthelezi believed Mandela would be a moderating element, preventing a socialist transformation. </p>
<p>German historian Aljoscha Tillmanns adds further insights to Buthelezi’s political strategy in his <a href="https://www.roehrig-verlag.de/shop/item/9783861107545/development-for-liberation-von-aljoscha-tillmanns-gebundenes-buch">PhD thesis</a>. As he shows, Buthelezi’s political convictions were strongly influenced by a belief in <a href="https://www.britannica.com/topic/consociationalism">consociationalism</a>. As a concept of government by coalition it is a form of political power sharing among competing elites.</p>
<p>As sociologist <a href="https://theconversation.com/profiles/roger-southall-296862">Roger Southall</a> has shown, this included attempts to seek closer cooperation with liberal and conservative whites <a href="https://www.jstor.org/stable/721987">in a politics of compromise</a>. Buthelezi posed as a pragmatic reformer without any specific ideology. </p>
<p>His trust in and reaffirmation of capitalism appealed to the business community, both in and outside South African. Tillmanns (p. 408) quotes him from a meeting with the press, commerce and industry in Frankfurt in February 1986:</p>
<blockquote>
<p>Dire necessity dictates that the free enterprise system be unshackled from its apartheid shackles (and…) multi-party democracy in which politics and economics are synthesised is prescribed by the need for economic development. </p>
</blockquote>
<h2>From civil war to democracy</h2>
<p>Buthelezi personified both black nationalism and Zulu traditionalism. But his ambitions were confronted with and limited by the growing influence of the ANC in the <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">negotiations for a post-apartheid society</a>. This escalated into massive violent clashes between his <a href="https://www.ifp.org.za/">Inkatha Freedom Party</a> and the ANC. Thousands of people <a href="https://www.jstor.org/stable/161169">were killed</a>. </p>
<p>He was willing to cooperate closely with the apartheid regime in his aim to prevent the ANC from seizing power. This went as far as having Inkatha members receiving <a href="https://mg.co.za/article/1995-12-22-caprivi-200-the-year-of-the-generals/">military training from the apartheid government’s army</a>.</p>
<p>Buthelezi’s determination to prevent the establishment of a new post-apartheid dispensation in which he had no major role ended in <a href="https://www.jstor.org/stable/161169">large-scale, deadly violence between IFP and ANC supporters</a> in today’s KwaZulu-Natal and Gauteng provinces. This escalated after the ANC and other liberation movements were unbanned in 1990. Thousands were killed ahead of the first democratic elections of 1994. </p>
<p>At the brink of civil war, Buthelezi – who originally <a href="https://www.sahistory.org.za/dated-event/ifp-agrees-participate-1994-elections">refused to participate in the elections</a> – decided to add Inkatha to the ballot papers. This paved the way to reducing the violence and allowed President Nelson Mandela to co-opt Buthelezi as minister of home affairs in his cabinet.</p>
<p>Buthelezi kept the portfolio during the first term of Thabo Mbeki’s presidency. He also occasionally served as South Africa’s acting president.</p>
<h2>The last days</h2>
<p>With the decline of Inkatha in the <a href="https://www.eisa.org/pdf/JAE3.2Mottiar.pdf">2014 elections</a>, Buthelezi lost his cabinet post. He remained president of the IFP until 2019 and an MP until his death.</p>
<p>He had an uneasy relationship with <a href="https://www.sahistory.org.za/people/king-goodwill-zwelithini-kabhekuzulu">King Goodwill Zwelithini</a>, the Zulus monarch since 1971. With the <a href="https://www.theguardian.com/world/2021/mar/22/king-goodwill-zwelithini-obituary">king’s death</a> in March 2021, Buthelezi re-engaged more intensively with the <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv02730/05lv03005/06lv03006/07lv03068/08lv03074.htm">Zulu kingdom</a> and related politics. </p>
<p>Buthelezi should not be dismissed as a mere stooge during apartheid. Yet, he deserves little praise as an advocate for human rights and civil liberties. His appetite for power was always stronger. But no matter on which side of history he is placed, he will remain the only leader of a Bantustan who left an imprint on South Africa’s way to democracy.</p><img src="https://counter.theconversation.com/content/175871/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henning Melber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Buthelezi should not be dismissed as a mere stooge during apartheid. Yet, he deserves little praise as an advocate for human rights and civil liberties.Henning Melber, Extraordinary Professor, Department of Political Sciences, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2068342023-06-15T12:37:31Z2023-06-15T12:37:31ZHow ‘constitutional county’ declarations undermine the Constitution – a legal scholar explains<figure><img src="https://images.theconversation.com/files/531818/original/file-20230613-19-1o7sl2.jpeg?ixlib=rb-1.1.0&rect=17%2C8%2C5884%2C3920&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ottawa County Commissioners Joe Moss, left, and Sylvia Rhodea ran for the positions vowing they would 'thwart tyranny' in the community.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/ottawa-county-commissioners-joe-moss-left-and-sylvia-rhodea-news-photo/1252065466?adppopup=true">Evan Cobb for The Washington Post via Getty Images</a></span></figcaption></figure><p><a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">Declaring its community a “constitutional county</a>” on May 23, 2023, the Board of County Commissioners in Ottawa County, Michigan, voted 9-1 not to enforce any law or rule that “restricts the rights of any law-abiding citizen affirmed by the United States Constitution.” </p>
<p>Nor will the county provide aid or resources to any state or federal agency that county officials judge to be infringing on or restricting those rights.</p>
<p>Ottawa is not the first county in Michigan to declare itself a refuge from what its leaders say are anti- or unconstitutional actions undertaken by an overzealous state or federal authority. </p>
<p>Livingston County, also in Michigan, <a href="https://www.bridgemi.com/michigan-government/livingston-declares-itself-constitutional-county-resist-gun-reforms">passed a similar resolution</a> in April 2023. </p>
<p>It is not clear how many there are, exactly, but there are also <a href="https://highlandscurrent.org/2023/03/31/editors-notebook-the-tricky-origins-of-the-constitutional-county/">self-designated constitutional counties</a> in Virginia, Texas, Nevada and New York. <a href="http://jfinn.faculty.wesleyan.edu/">As a scholar of constitutional theory</a>, I believe more will follow, especially in the <a href="https://tacticalgear.com/experts/second-amendment-sanctuary-reviewed-every-u-s-state-and-county">roughly 1,100 counties</a> of the nation’s 3,200 counties that have already declared themselves Second Amendment sanctuaries. </p>
<p>But where <a href="https://www.thetrace.org/2020/01/second-amendment-sanctuary-movement/">Second Amendment sanctuaries</a> aim to create havens for gun rights allegedly under siege, the constitutional county movement has a broader agenda. </p>
<p>One of the drafters of the Ottawa Resolution, for example, <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">explained</a>, “As we wrote this resolution … we recognized the need to protect not only Second Amendment rights but all constitutional rights. … We wish to highlight freedoms and constitutional rights which have been violated over the past few years, as well as those currently at risk due to societal and political pressures.” </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/y2mTYe3qdvA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A news report about the Ottawa County, Michigan, vote to declare itself a ‘constitutional county.’</span></figcaption>
</figure>
<h2>Why constitutional counties are unconstitutional</h2>
<p>Although the two Michigan county resolutions are chiefly symbolic and do little more than encourage – rather than order – local law enforcement authorities and local officials to disregard federal laws they claim are unconstitutional, the dangers they pose to the U.S. constitutional system are substantial.</p>
<p>This way of thinking <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">is profoundly mistaken</a> and undermines Americans’ collective commitment to constitutional democracy.</p>
<p>Declaring oneself a constitutional county undermines the authority of officials authorized to act under the Constitution. I believe it ultimately subverts the authority of the Constitution itself. </p>
<p>When these resolutions instruct county police not to enforce certain laws, such as red flag laws that allow the confiscation of firearms from certain people, they violate <a href="https://constitution.congress.gov/browse/article-6/#:%7E:text=Article%20VI%20Supreme%20Law&text=All%20Debts%20contracted%20and%20Engagements,Constitution%2C%20as%20under%20the%20Confederation.">Article 6 of the U.S. Constitution</a>. Article 6 declares that the Constitution itself and federal laws are “<a href="https://constitution.congress.gov/constitution/article-6/">the supreme Law of the Land</a>” and cannot be overruled or superseded by state laws or laws at lower levels of government. </p>
<p>So any county that claims to nullify federal laws it finds objectionable raises constitutional problems. So, too, do assertions of a right to obstruct federal law or to impede the exercise of federally guaranteed rights and liberties. </p>
<p>In both scenarios, <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">local authorities</a> claim they are under no constitutional obligation to enforce, or to <a href="https://www.livingstondaily.com/story/news/local/community/livingston-county/2023/04/25/livingston-declared-constitutional-county-in-second-amendment-reaffirmation/70147404007/">help state or federal officials enforce</a>, laws and regulations that are, in their view, plainly unconstitutional. </p>
<p>On the other hand, if the point is simply to refuse to assist federal officials in enforcing federal law, then that probably is not unconstitutional. </p>
<p>In <a href="https://www.oyez.org/cases/1996/95-1478">Printz v. United States</a>, the Supreme Court held in 1997 that federal officials cannot force state and local officials to enforce federal law. </p>
<h2>Constitutional principles – or politics?</h2>
<p>Among the constitutional liberties <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">Ottawa County officials think are at risk</a> is freedom of religion, which they say is threatened by state and federal diversity requirements in schools. Other rights they say are threatened include those granted by the Second Amendment and parental liberties; they also cite certain kinds of threats to individual liberty, such as COVID-19 mask requirements.</p>
<p>Notably absent were concerns about threats to reproductive autonomy, sexual and gender identities, or public safety endangered by firearms violence. Professions of constitutional fidelity by constitutional county advocates are more often about politics than real concern for the Constitution. </p>
<p>These declarations can be used – and I believe will be used – for pretty much any political agenda and to evade federal laws that some citizens find objectionable. </p>
<p>In doing so, they become little more than political excuses to end-run Article 6 of the Constitution whenever it suits. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Screen shot of an announcement about the upcoming vote on the constitutional county measure by the county commissioners." src="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=788&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=788&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=788&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=990&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=990&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=990&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An announcement by ‘2A PATRIOT,’ a Michigan pro-Second Amendment group, about the Ottawa County commissioners meeting at which the constitutional county measure would be voted on.</span>
<span class="attribution"><a class="source" href="https://2apatriot.org/f/ottawa-county-going-for-constitutional-county-status">2A PATRIOT</a></span>
</figcaption>
</figure>
<h2>Taking the Constitution seriously</h2>
<p>It is tempting to applaud any effort by citizens to take the Constitution seriously. As I wrote in my book “<a href="https://kansaspress.ku.edu/9780700619627/">Peopling the Constitution</a>,” a healthy and vibrant constitutional democracy requires citizens who understand its promises and take some responsibility for making those promises a reality. </p>
<p>A resolution that simply makes a symbolic claim about federal law or about what the Constitution truly means, and does not order authorities to ignore or violate federal law, does not itself violate the Constitution. Such claims are a vital part of civic and constitutional debate in a healthy constitutional democracy. </p>
<p>But constitutional populism is a double-edged sword. The line between principled constitutional differences of opinion and partisan politics pretending to be a constitutional argument will not always be obvious or easy to discern. </p>
<p>When it substitutes partisanship for discernment, and assertion for argument, the constitutional counties movement undermines the very Constitution it purports to honor. </p>
<p><em>This story incorporates material from <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">a previous story</a> in The Conversation by the author.</em></p><img src="https://counter.theconversation.com/content/206834/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Finn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>By declaring a ‘constitutional county,’ local leaders assert they are creating a refuge from anti- or unconstitutional actions undertaken by an overzealous state or federal authority.John E. Finn, Professor Emeritus of Government, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1928892022-10-24T08:38:33Z2022-10-24T08:38:33ZSouth Africa’s parliament fails to hold the executive to account: history shows what can happen<figure><img src="https://images.theconversation.com/files/491018/original/file-20221021-22-3ulusp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa addresses a parliamentary session.
</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>In South Africa’s <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid era</a> from 1948 to 1994, the executive arm of government dominated over parliament. In any system, this allows a small group of politicians to dominate the larger body of elected representatives from which they are drawn, with no effective limitations. Corruption and abuse of power almost always follow directly. </p>
<p>At the start of the new democratic era, the drafters of the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">1996 constitution</a> changed this. The constitution gives the legislature the authority and the obligation to oversee the exercise of public power, and hold the executive accountable. </p>
<p>The constitution contains nearly 40 provisions to do this. Chief among these provisions is <a href="https://myconstitution.co.za/en/04.html#powers-of-national-assembly">section 55 (2)</a>: </p>
<blockquote>
<p>The National Assembly must provide for mechanisms – (a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of (i) the exercise of national executive authority, including the implementation of legislation; and (ii) any organ of state.</p>
</blockquote>
<p>The foundational values of “<a href="https://myconstitution.co.za/en/01.html#republic-of-south-africa">accountability, responsiveness and openness</a>” in section 1(d) of the constitution demanded a radical change in parliament’s relationship with the executive.</p>
<p>In 1994, the Speaker of Parliament began a range of initiatives to get the change under way. I undertook three projects at her request between 1996 and 1999: </p>
<ul>
<li><p>a system of mandatory disclosure of financial interests by every MP and their immediate family members </p></li>
<li><p>a system of parliament scrutinising every piece of subordinate legislation made by the executive to test it for constitutional compliance</p></li>
<li><p>setting out parliament’s obligations under section 55 of the constitution. This is now known as the <a href="https://pmg.org.za/committee-meeting/268/">“Corder Report”</a>. I wrote this report with two colleagues. </p></li>
</ul>
<p>The report recommended legislation to set standards of accountability and institutional independence. It proposed new rules about how the two houses of parliament should report to parliamentary committees. And it suggested there should be a Standing Committee on Constitutional Institutions, essentially what the constitution calls the State Institutions supporting Constitutional Democracy, <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">or the Chapter 9 bodies</a>. These include the Public Protector, the Human Rights Commission and the Auditor-general.</p>
<p>Parliament responded only partially and ineffectively. It referred the matter to the Rules Committee, which changed some portfolio committee processes. But the changes did not embrace the spirit of the constitutional obligations.</p>
<p>Parliament failed to live up to its constitutional mandate. This failure was noted by the <a href="https://www.gov.za/sites/default/files/gcis_document/202206/electronic-state-capture-commission-report-part-vi-vol-ii.pdf">State Capture Commission</a> as having contributed to the relative ease with which the administration of former president Jacob Zuma, and its fellow travellers, could <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">corrupt state behaviour</a>. </p>
<p>The absence of standards of accountability and the fact that portfolio committees are not independent, are the reasons parliament is failing in its constitutional mandate to hold the executive accountable. </p>
<p>This matters because the lack of parliamentary vigilance has a number of consequences. The first is that the executive and public administration will succumb to the temptations that their power gives them. The second is that the electorate is failed by its direct representatives. Thirdly, that the organs of state which must secure integrity (the courts and <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">Chapter 9 institutions</a>) are placed under undue stress. And finally, it falls to civil society and public-spirited individuals to take on the burden of challenging the abuse of power.</p>
<h2>History of accountability</h2>
<p>A condition of the exercise of power in a constitutional democracy is that the administration or executive is checked by being held accountable to an organ of government distinct from it.</p>
<p>Accountability means explaining decisions or actions, making amends for any fault and taking steps to prevent a recurrence. </p>
<p>The <a href="https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx">separation of powers</a> has been the foundation stone of democratic government since the 17th century. Public power was divided among the executive, judicial, and legislative branches of government. Methods of mutual checking and balancing were established. </p>
<p>During the 20th century, executive power expanded so as to meet the needs of growing populations in a changing world. </p>
<p>The executive branch thus came to dominate the legislature. The judicial authority rose in prominence after 1945. This, as bills of fundamental rights and an increasing emphasis on the lawful exercise of public power made their way into national constitutions. </p>
<h2>African experience</h2>
<p>Almost all African countries experienced these developments in their formal liberation from European imperialism in the <a href="https://www.britannica.com/place/central-Africa/The-end-of-the-colonial-period">second half of the 1900s</a>. </p>
<p>The pattern of allocating power began to shift in the early 1990s, with freedom coming finally to <a href="https://www.sahistory.org.za/dated-event/namibia-gains-independence">Namibia</a> and <a href="https://www.britannica.com/question/How-did-apartheid-end">South Africa </a>. This coincided with the collapse of the <a href="https://theconversation.com/how-the-fall-of-the-berlin-wall-30-years-ago-resonated-across-africa-126521">Soviet empire</a>, and a rash of constitution-making in central and eastern Europe. This soon followed in mainly Anglophone Africa.</p>
<p>These new constitutions typically gave pride of place to bills of rights. They gave the superior courts the authority to test whether rights had been infringed and whether government decisions and actions were lawful and constitutional. The judicial branch of government rose in political prominence. This, in turn, focused attention on judges’ independence and accountability. </p>
<p>Given the experience in the developed world, the drafters of these new constitutions recognised that politicians would put pressure on the courts. So the inclusion of what the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">South African constitution</a> calls <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">state institutions supporting constitutional democracy</a> took hold. </p>
<p>Most modern constitutions in Africa followed suit. They established bodies such as the <a href="https://www.jstor.org/stable/759228#metadata_info_tab_contents">ombudsman</a> or <a href="https://www.jstor.org/stable/23644677#metadata_info_tab_contents">public protectors</a> and <a href="https://www.hrw.org/reports/2001/africa/overview/factors.html">human rights</a> and <a href="https://cge.org.za/">gender commissions</a>. </p>
<p><a href="https://www.loc.gov/item/lcwaN0027328/">Independent electoral commissions</a>, <a href="https://www.oagkenya.go.ke/">auditors-general</a>, and <a href="https://www.acc.gov.zm/">anti-corruption commissions</a> also came into being. These bodies, collectively known as the integrity branch of government, complement the review powers of the courts in holding the executive to account.</p>
<p>How have these arrangements translated into practice?</p>
<p>The general picture across Africa is patchy. There are only isolated examples of the legislature demanding answers from the president and cabinet. This results in the denial of constitutional rights. It puts even more pressure on the courts to come to the rescue and exposes the judiciary to <a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">unwarranted attack</a>.</p>
<p>The South African legislature is no exception.</p>
<h2>Failure of accountability</h2>
<p>There are many reasons why the South African parliament has failed to hold the executive accountable. </p>
<p>Foremost is the control that political party bosses exercise over members of parliament. This is due to the country’s <a href="https://www.elections.org.za/content/Elections/Election-types/">party-list proportional representation</a> electoral system.</p>
<p>The majority party in parliament (the African National Congress) has held that position since 1994. It chairs all but one of the portfolio and standing committees, which are the chief mechanisms for accountability.</p>
<p>Where the party whip demands unquestioning obedience, <a href="http://www.channelafrica.co.za/sabc/home/channelafrica/news/details?id=82e4a0ee-0d92-471e-bb17-67ed587a816d&title=Ramaphosa%20defends%20ANC%20MPs%E2%80%99%20need%20to%20toe%20the%20party%20line">as has been the case</a>, parliamentary committees ask few questions and fail to hold the executive to account. This, despite the best intentions of opposition (and even some governing) MPs. </p>
<p>It forces people to use <a href="https://www.gov.za/documents/promotion-access-information-act">access to information routes</a> or other less open means of exposing the abuse of power or maladministration.</p>
<p>For this reason, the <a href="https://www.statecapture.org.za/">State Capture Commission</a> has advised that the <a href="https://theconversation.com/constitutional-court-ruling-heralds-changes-to-south-africas-electoral-system-140668">electoral system</a> and some aspects of the committee functions should be reviewed. This would weaken the grip of the party on its MPs. </p>
<p>Given the <a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">divisions within its ranks</a>, the ANC is unlikely to promote any steps that undermine the influence of its leadership cohort.</p>
<p>All those who value the responsible exercise of public power in a constitutional democracy will support such a recommendation. But few will be holding their breath.</p><img src="https://counter.theconversation.com/content/192889/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has in the past received funding from the NRF of South Africa. He is affiliated with the Council for the Advancement of the South African Constitution and Freedom under Law. </span></em></p>Parliament’s failure to live up to its constitutional mandate was noted by the State Capture Commission as having enabled former president Zuma’s regime to corrupt state behaviour with ease.Hugh Corder, Professor Emeritus of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1755332022-01-27T15:09:28Z2022-01-27T15:09:28ZRule of law in South Africa protects even those who scorn it<figure><img src="https://images.theconversation.com/files/442317/original/file-20220124-21-c70zys.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lindiwe Sisulu pledges to uphold the constitution before fomer Chief Justice Mogoeng Mogoeng in 2014.
</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>Yet another war of words is being waged in South Africa, ostensibly over the role of the courts in delivering the change envisaged in the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. As usual, given that most attacks on court judgements have come from leading members of the governing African National Congress (ANC), the opening salvos were fired by a member of the cabinet – tourism minister Lindiwe Sisulu, in <a href="https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-e5db-4293-aa21-dcccd52a36d3?_ga=2.65286957.249107170.1642404523-1387260856.1549361579">a recent opinion piece in the media</a>. </p>
<p>In the piece, she clearly seeks to evade her (the ANC’s) direct responsibility for their failure over the past 27 years effectively to implement policies and programmes that would have delivered socio-economic rights and services to alleviate <a href="https://theconversation.com/what-can-be-done-to-tackle-the-systemic-causes-of-poverty-in-south-africa-169866">poverty</a> and <a href="https://www.worldbank.org/en/country/southafrica/overview#1">inequality</a>. </p>
<p>Aside from calling some black judges <a href="https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-e5db-4293-aa21-dcccd52a36d3?_ga=2.65286957.249107170.1642404523-1387260856.1549361579">“mentally colonised” and “house negroes”</a>, Sisulu threw in rhetoric about imperial impositions and the negation of African values. She singled out the rule of law for particular disdain.</p>
<p>This seems odd because politicians mostly claim adherence to the rule of law even if not honouring it in practice. So rejecting it seems to break with one of the essential foundations of any constitutional democracy.</p>
<p>Let us look more closely at the meaning of the rule of law, and why it has come to be the favoured foundation for constitutional democratic governance throughout the world over the past century.</p>
<h2>The rule of law</h2>
<p>The modern origins of the rule of law are usually traced to the work of the English constitutional lawyer A.V. Dicey. <a href="https://files.libertyfund.org/files/1714/0125_Bk.pdf">In his Introduction to the Study of the Law of the Constitution</a> (1885), he defined the rule of law as follows:</p>
<blockquote>
<p>The absolute supremacy … of regular law as opposed to the influence of arbitrary power … It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens</p>
</blockquote>
<p>Dicey added a third leg to this definition, noting that in England the rule of law was established through popular struggles of ordinary people. This resonates with South Africans’ experience in resisting apartheid.</p>
<p>After the second world war, the rule of law became the rallying cry for all sorts of political and social movements. </p>
<p>The great Marxist social historian E.P. Thompson said (in 1975) the fact that the ruling class was forced to rule by law, and not by abuse of power, was a <a href="https://books.google.co.za/books/about/Whigs_and_Hunters.html?id=eKRZAAAAYAAJ&redir_esc=y">cultural achievement of universal significance</a>. Thompson was sceptical about law, but reached this conclusion studying the popular resistance waged in the late 1700s by ordinary people in England against unjust rules irregularly enforced.</p>
<p>The appeal of the rule of law was also enhanced when it was extended to include socio-economic rights. This was triggered by the rapid pace of decolonisation during the 1960s, and pressure from newly independent Asian and African democracies.</p>
<p>The rule of law thus came to embody the rallying cry for the fair and democratic exercise of public power, buttressed by law and fundamental rights. One of South Africa’s leading academic lawyers, Tony Mathews, <a href="https://books.google.co.za/books?id=pZcLb6dn2dsC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false">refined Dicey’s definition</a> (1975) by laying down preconditions for what would qualify as “law” and by insisting on the equal guarantee of all basic rights and freedoms.</p>
<h2>Rule of law and accountability</h2>
<p>So the rule of law today has developed greatly since it was first formulated. It has responded to the struggles of those resisting imperialism and autocratic rule throughout the world. </p>
<p>It now demands not only rule by law and the protection of basic rights. It also demands that those who exercise public power account for their decisions and actions. They must justify any departures from constitutional and lawful mandates before an independent and impartial court of law.</p>
<p>The erstwhile apartheid regime argued that it complied with the rule of law. But it plainly did not: although it mostly <a href="https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1431&context=fac_articles_chapters">ruled by law</a>, the rules it adopted did not comply with the generally understood concept of the rule of law. </p>
<p>In particular, most of its laws were premised on “race” inequality and the <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">denial of basic rights and freedoms to all</a>. Against this background, the demands by anti-apartheid campaigners inside South Africa over many decades to entrench the rule of law are hardly surprising. </p>
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Read more:
<a href="https://theconversation.com/lindiwe-sisulu-trading-on-a-famous-south-african-surname-has-its-limits-175150">Lindiwe Sisulu: trading on a famous South African surname has its limits</a>
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<p>The ANC committed to government authority limited by law in its <a href="https://scnc.ukzn.ac.za/doc/hist/freedomchart/freedomch.html">1955 Freedom Charter</a> and <a href="https://www.sahistory.org.za/sites/default/files/DC/Spn2689.1684.5161.000.056.Spn2689.2/Spn2689.1684.5161.000.056.Spn2689.2.pdf">1988 Constitutional Guidelines</a>. Thus there was strong support during the <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">constitutional negotiations of the early 1990s</a> for the rule of law as a founding value of the post-apartheid democratic regime.</p>
<p>So the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">1996 constitution</a> provides in section 1 that </p>
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<p>South Africa is one, sovereign, democratic state founded on the following values: … (c) Supremacy of the constitution and the rule of law.</p>
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<p>It is widely referred to by all judicial officers, particularly in holding the executive and public administration to account for their exercise of public power.</p>
<p>The rule of law thus provides a universal benchmark for assessing the accountability of government for the lawful, effective, efficient and uncorrupt provision of goods and services. It is precisely the corrupt abuse of power that has become so widespread in public governance since about 2010 (<a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0">under former president Jacob Zuma</a>) that threatens the survival of the rule of law. Had it not been for the many court judgments upholding the rule of law, the country would be in a far worse position now.</p>
<h2>Minister Sisulu’s claims in context</h2>
<p>So what accounts for this most recent and shockingly intemperate assault on the judiciary? </p>
<p>Minister Sisulu appeared to be attacking the courts for their critical role in <a href="https://theconversation.com/is-south-africas-constitutional-court-protecting-democracy-107443">upholding the rule of law</a>. </p>
<p>She vilified (black) judges for requiring compliance with the constitution and parliamentary laws, and for demanding accountability for the exercise of public power. But she proposed no solutions for the problem she manufactured.</p>
<p>Her remarks coincided with the release of the <a href="https://www.scribd.com/document/550966842/Judicial-Commission-of-Inquiry-Into-State-Capture-Report-Part-1#from_embed">first of Justice Raymond Zondo’s reports on state capture</a>. The report contains <a href="https://theconversation.com/state-capture-report-chronicles-extent-of-corruption-in-south-africa-but-will-action-follow-174441">harsh criticism of the corruption</a> and abuse of power by the ANC and its leaders. </p>
<p>The governing party’s reputation is in tatters and public pressure for accountability mounts. Must one thus conclude that it is Justice Raymond Zondo and the state capture commission, together with that faction of the ANC which is regarded as being in favour of the foundational values of South Africa’s constitutional democracy, that are the real targets of Sisulu’s vitriol?</p>
<p>It is often argued that a constitutional regime is only as good as the protections it provides for those who oppose government, even from within. The rule of law is the key element in any such dispensation. Those who would destroy the rule of law and its enforcer, the judiciary, should ask themselves: to whom will I turn for protection if I find myself on the wrong side of political power?</p><img src="https://counter.theconversation.com/content/175533/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has in the past received funding from the National Research Foundation of South Africa. He serves as a Director of Freedom under Law and on the Executive Committee of the Council for the Advancement of the South African Constitution.</span></em></p>The rule of law embodies the rallying cry for the fair and democratic exercise of public power, buttressed by law and fundamental rights.Hugh Corder, Professor Emeritus of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1659142021-08-24T14:16:00Z2021-08-24T14:16:00ZThe monarch in Lesotho should be given some powers: but not extreme powers<figure><img src="https://images.theconversation.com/files/417444/original/file-20210823-23-pqrvtj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">King Letsie III of Lesotho. Frustration with politicians has led to a rise in popularity of the monarchy in recent times.</span> <span class="attribution"><span class="source"> CChris Jackson via Getty Images</span></span></figcaption></figure><p>The kingdom of Lesotho has been marked by waves of <a href="https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/6196/Khabele%20Matlosa.pdf;sequence=1">political instability</a> since independence from Britain in 1966. This has manifested in several forms – such as coups, mutinies, electoral disputes, forced exile of political opponents and assassinations. The most recent wave of instability, which necessitated the current long-running facilitation by the Southern African Development Community (SADC), was from <a href="https://www.accord.org.za/conflict-trends/appraising-the-efficacy-of-sadc-in-resolving-the-2014-lesotho-conflict/">2014 to 2015</a>. </p>
<p>Now the country is discussing wide-ranging <a href="https://www.gov.ls/reforms/">constitutional reforms</a> with the aim of achieving lasting peace and stability. The reforms are locally led by the <a href="https://www.ls.undp.org/content/lesotho/en/home/news-centre/articles/The-Lesotho-National-Reforms-Bill-to-safeguarding-and-insulate-Lesotho-Reforms-Process-passed.html">National Reforms Authority</a> – a statutory body comprising several stakeholders such as political parties, government, civil society and other formations.</p>
<p>The reform process dates back to 2012 but gained momentum in 2015 as a result of the strong recommendation of the <a href="https://www.gov.ls/wp-content/uploads/2018/01/phumaphi-report_201602081514.pdf">SADC Commission of Inquiry</a> into the assassination of the former army commander, Lieutenant General Maaparankoe Mahao. There are <a href="https://www.gov.ls/reforms-forum-achieves-goal/">seven themes</a> to the reform programme. They entail a review of the constitution, parliament, public service, justice, security, economic and media. </p>
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Read more:
<a href="https://theconversation.com/lesothos-new-leader-faces-enormous-hurdles-ensuring-peace-and-political-stability-139320">Lesotho's new leader faces enormous hurdles ensuring peace and political stability</a>
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<p>The reform process has once again raised the perennial question of the place of the monarch in the constitutional design. At present it’s mostly a ceremonial role. But recently there’s been a <a href="https://media.africaportal.org/documents/ad413-basotho_endorse_greater_role_for_traditional_leaders-afrobarometer_dispa_B4YDfRj.pdf">rise in popularity</a> of traditional leadership, and the monarch in particular, amid growing frustration with the elected leadership.</p>
<p>The <a href="https://www.gov.ls/wp-content/uploads/2019/11/EXPERT-REPORT-OF-CONSTITUTUIONAL-REFORMSFINAL-23-OCT-19.pdf">citizens’ voices</a> on the reforms suggest that people want the monarch to have more power - including the control of the army. This is a change from earlier <a href="https://www.ajol.info/index.php/lwati/article/view/57490">trends</a>. </p>
<p>The reforms are a wholesale enterprise to review all the institutions in Lesotho, including the institution of the monarch. But, the extent to which the reforms can overhaul the entire design is a matter of <a href="https://www.tandfonline.com/doi/abs/10.1080/00083968.2020.1834418?journalCode=rcas20">intense discourse</a>. </p>
<h2>Traditional leadership</h2>
<p>After independence from Britain <a href="https://books.google.co.ls/books?hl=en&lr=&id=B2TWVN92hYYC&oi=fnd&pg=PR7&dq=Independence+of+Lesotho&ots=iQftFOeTWM&sig=OkpQYBbasG3b6S--auSdyiOa4pY&redir_esc=y#v=onepage&q=Independence%20of%20Lesotho&f=false">in 1966</a>, there was a steady decline in the power of traditional leadership in Lesotho. The powers of traditional leaders on key matters such as land allocation and dispensing of justice all dissipated. </p>
<p>The <a href="http://www.scielo.org.za/pdf/dejure/v53/11.pdf">1993 constitution</a> took away the little powers that the king had in terms of the 1966 constitution. He is now expected to act “on the advice” of the prime minister, cabinet or <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Council of State</a>. The real political power has drifted, almost entirely, to the cabinet and the prime minister in particular. </p>
<p>But not everyone wants <a href="https://www.jstor.org/stable/pdf/41231177.pdf?casa_token=G5L71YENm8sAAAAA:8JmPmKVKo1g7xlmn4XOluKUkVpzX78HN6d5561OdxIFeKsBI_JD8NPjkBx44vnWheCr97hFeDxu8tBQpnuthKu4p83JRG8XwB_l7nnv-Fbap96Y9n8E">the total abolition</a> of traditional leadership in Lesotho. The resilience of the monarch is arguably based on <a href="https://academic.oup.com/afraf/article-abstract/112/448/353/124493">two pillars</a>. Firstly, the institution is still culturally embedded in the psyche of the society. Therefore, it still enjoys legitimacy. Secondly, the failure of democracy has led people to hope that other forms of government, like monarchism, can offer a better alternative. </p>
<h2>Failed democracy</h2>
<p>Lesotho’s constitutional democracy has not lived up to its lofty promises. Those who were chosen to represent the people have not performed any better <a href="https://journals.co.za/doi/abs/10.10520/EJC46008?casa_token=Jy412EVkS4MAAAAA:E-lGNAyej1APF-OZOTSpMZI2lu0FqeWAyYMCqcy7qVPw05cFNyHHXbGcLoTKql28_ddV3GMwW7X8Bg">than the pre-existing traditional institutions</a>. The country’s <a href="https://www.worldbank.org/en/country/lesotho/overview">grinding poverty</a> and <a href="https://www.eisa.org/pdf/JAE14.2Weisfelder.pdf">political instability</a> continue.</p>
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Read more:
<a href="https://theconversation.com/south-africas-efforts-to-stabilise-lesotho-have-failed-less-intervention-may-be-more-effective-137499">South Africa's efforts to stabilise Lesotho have failed. Less intervention may be more effective</a>
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<p>Lesotho’s Auditor General always expresses <a href="http://www.auditgen.org.ls/images/OAG_Documents/AUDIT_CERTIFICATE_2016.pdf">disclaimer or adverse opinions</a> on government’s annual financial statements because of embezzlement and misappropriation, among other causes. Access to public office has been a <a href="https://www.degruyter.com/document/doi/10.1515/ldr-2018-0025/html">licence to loot state resources</a> and <a href="https://www.voanews.com/africa/lesotho-exiled-opposition-wants-sadc-intervention">torment political opponents</a>. </p>
<p>When citizens have an opportunity to rank politicians in surveys, they <a href="https://afrobarometer.org/publications/ad413-citizens-endorse-traditional-leaders-see-greater-role-contemporary-lesotho">show dissatisfaction</a>. </p>
<p>The recent rise in the popularity of traditional leadership is not due to its achievements but to the failure of democratically elected leadership.</p>
<h2>Power balance</h2>
<p>In view of this resurgence in the popularity of the monarch, the powers of the monarch in the constitution may change somewhat. That is if the reforms are genuinely consultative. </p>
<p>There is not necessarily anything inherently wrong with giving power to the monarch in a system based on the constitutional monarchy. It may even enhance the constitution when power is balanced between the monarch and liberal politicians. That will build in checks and balances.</p>
<p>But restoring some powers to the monarch should be considered extremely carefully. A monarch with absolute powers is just as dangerous as self-serving politicians in a democracy. </p>
<p>Fortunately, the current constitutional reform process in Lesotho happens against the backdrop of <a href="https://www.voanews.com/africa/pro-democracy-protests-continue-rock-eswatini">pro-democracy demonstrations</a> in eSwatini – the southern African region’s only absolute monarchy. </p>
<p>In eSwatini the king wields all the power and there is no political participation of other political groups. The king has <a href="https://www.tandfonline.com/doi/abs/10.1080/02500167.2014.974639">monopolised the economy</a> too. </p>
<p>The frustration with politicians among Basotho should not evoke the decision to discard democracy completely. Democracy - the ability to choose public representatives and hold them to account - is still an <a href="https://books.google.co.ls/books?hl=en&lr=&id=VNez0rhiE44C&oi=fnd&pg=PA26&dq=democracy+and+elections&ots=vIflLnL7Yq&sig=OvWNmPV5GLDB484LG_fGpTLmjyg&redir_esc=y#v=onepage&q=democracy%20and%20elections&f=false">essential principle of constitutionalism</a>. It should prevail over heredity. </p>
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Read more:
<a href="https://theconversation.com/pasha-86-why-its-wrong-to-be-pessimistic-about-democracy-in-africa-149927">Pasha 86: Why it's wrong to be pessimistic about democracy in Africa</a>
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<p>In a constitutional democracy, no single institution must wield untrammelled powers, even an elected one. The problem with Lesotho’s 1993 constitution is that it gives the prime minister near-absolute powers. The most brazen consequence has been the abuse of power to control the <a href="https://www.tandfonline.com/doi/abs/10.1080/02589001.2020.1749246">army</a>. For years, politicians have used the army to stoke <a href="https://www.voanews.com/africa/lesotho-exiled-opposition-wants-sadc-intervention">unrest and persecute opponents</a>.</p>
<h2>Time to talk about it</h2>
<p>The conversation about the place of the king in Lesotho’s constitution is timely. The monarch’s lack of power has not worked for constitutional development in the country.</p>
<p>The monarchy is embedded in society but has no significant role. This is counter-intuitive and costly. Taxpayers foot a hefty bill for an institution that has no significant role in checking on the excesses of elected politicians. </p>
<p>The monarch must be given some powers, but not extreme powers. That would equally harm efforts to consolidate democracy. Reformers must strike a balance between the principle of democracy and the doctrine of checks and balances.</p><img src="https://counter.theconversation.com/content/165914/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A monarch with absolute powers is just as dangerous as self-serving politicians in a democracy.Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of LimpopoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644542021-07-16T13:26:54Z2021-07-16T13:26:54ZSouth Africa’s Constitutional Court: the case for judicial dissent, and the caveats<figure><img src="https://images.theconversation.com/files/411423/original/file-20210715-13-adbwny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Constitutional Court in session in 2018.</span> <span class="attribution"><span class="source">Alaister Russell/Sowetan/Gallo Images/Getty Images</span></span></figcaption></figure><p>When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?</p>
<p>Two weeks ago, South Africa’s Constitutional Court handed down judgment in two cases with <a href="https://www.news24.com/news24/southafrica/news/zuma-to-jail-ramaphosa-vindicated-two-significant-judgments-ancs-nec-will-debate-this-weekend-20210702">high political stakes</a>.</p>
<p>First, it was Acting Deputy Chief Justice Khampepe who <a href="https://www.youtube.com/watch?v=v84VZM5M-88">read</a> <a href="http://www.saflii.org/za/cases/ZACC/2021/18.html">the court’s reasons</a> for its punitive order sentencing former president Jacob Zuma to 15 months’ imprisonment. This was for contempt of <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">its earlier order</a> directing him to comply with the summonses and directives issued by the Zondo Commission.</p>
<p>Then, two days later, Justice Jafta <a href="https://www.youtube.com/watch?v=XHk17Oe5V0g&t=1s">delivered</a> the court’s <a href="http://www.saflii.org/za/cases/ZACC/2021/19.html">withering critique</a> of Public Protector Busisiwe Mkhwebane’s disregard for both the facts and the law in her findings and remedial action against President Cyril Ramaphosa in relation to campaign donations.</p>
<p>The outcome of each case is of undeniable political consequence. They add to a string of legal losses that has landed the former president <a href="https://www.news24.com/news24/columnists/guestcolumn/songezo-zibi-how-zuma-ended-up-in-prison-and-why-no-one-can-be-allowed-to-disobey-the-law-20210712">in prison</a> and the incumbent public protector <a href="https://www.dailymaverick.co.za/article/2021-07-01-another-public-protectors-report-bites-the-dust-and-its-all-clear-for-an-impeachment-inquiry/">perilously close to impeachment</a>. </p>
<p>Taken together, the judgments shift the <a href="https://www.dailymaverick.co.za/article/2021-07-08-jacob-zumas-fate-is-but-a-symptom-of-a-deep-dramatic-power-shift-within-the-anc/">fault lines of power</a> in South Africa’s fragile democracy.</p>
<p>But the court was split in both decisions.</p>
<p>While the court was unanimous in finding Zuma in contempt of its orders, a partial dissent written by Justice Theron (with Justice Jafta concurring) parted ways with the majority on the question of sanction. And in the campaign donations case, Chief Justice Mogoeng found himself alone in finding merit in the public protector’s appeal.</p>
<p>These minority judgments are now being used to shore up support for spurious challenges to the finality of the court’s judgments. Zuma has <a href="https://collections.concourt.org.za/handle/20.500.12144/36786?show=full">applied</a> to the court for the rescission of its “erroneous” and “unconstitutional” judgment. And Mkhwebane has <a href="https://www.sowetanlive.co.za/news/south-africa/2021-07-04-concourt-got-it-wrong-says-public-protector-as-she-considers-asking-apex-court-to-rescind-cr17-judgment/">indicated</a> that she may follow suit with a rescission application of her own.</p>
<p>This calls into question the status of minority judgments in a court of last resort. The court’s answer to Zuma’s rescission application will influence the future practice of judicial dissent. But it will also have profound implications for the court’s authority and the rule of law in South Africa.</p>
<h2>Wielding dissents to undermine judicial authority</h2>
<p>Zuma has long <a href="https://mg.co.za/article/2012-02-17-no-sunset-clause-for-constitution/">questioned</a> the logic of dissents. He did so most memorably in an interview with The Star in February 2012:</p>
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<p>How could you say that judgment is absolutely correct when the judges themselves have different views about it? … There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?</p>
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<p>On this occasion, Zuma is using a minority judgment to mount a more fundamental challenge to the authority of the court’s ruling against him.</p>
<p>His rescission application claims that the key sting of the minority judgment was</p>
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<p>the unprecedented announcement that the Constitutional Court had acted unconstitutionally and therefore irrationally or has exceeded its judicial authority and mandate (para 95). </p>
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<p>This does not merely characterise the minority as having <em>disagreed</em> with the majority. It portrays the minority as having <em>pronounced</em> on the constitutionality of the majority judgment itself.</p>
<p>This is a legal sleight of hand. </p>
<p>Dissent often arises from disagreement between the judges about what the constitution requires in a particular case. But only the argument that garners majority support authoritatively answers that question. This simple but incontrovertible fact means that even the judges in the minority – notwithstanding their disagreement – would now have to recognise that the contempt case against Zuma was authoritatively and finally settled by the majority judgment.</p>
<p>But, in keeping with his strategy of <a href="https://www.dailymaverick.co.za/article/2021-04-15-in-response-to-mogoeng-zuma-returns-to-claims-of-concourt-judicial-bias-possibly-orchestrating-his-own-demise/">litigating by letters</a>, Zuma’s distortion of the court’s decision appears aimed at influencing the court of public opinion.</p>
<p>As the guardian of the constitution, the court’s legitimacy depends on public confidence that its rulings vindicate the constitution. By contending that the majority judgment is “unconstitutional”, Zuma casts the court as a threat to the constitution and, by implication, to his human rights as a “victim” of the court’s deviance.</p>
<p>This is why the rescission application constitutes a continuing – and indeed more radical – assault on the court’s authority and the rule of law. And here’s the rub: Zuma portrays the dissent as having split the court in an internecine power struggle that renders the authority and finality of <em>all its judgments</em> open to contestation.</p>
<h2>Questioning the value of dissenting judgments</h2>
<p>Should South Africans lament the fact that the court did not speak with one voice when sanctioning Zuma for his contempt of court?</p>
<p>A unanimous judgment can be a <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">powerful way</a> to deliver justice in politically divisive cases. But there are reasons to value dissent even when – and perhaps especially when – one agrees with the majority judgment.</p>
<p>Dissent is a vital sign that judicial independence is alive – and kicking.</p>
<p>A split judgment bears out the existence of disagreement that is only possible where there is independent-mindedness on the bench. </p>
<p>It could be argued, in fact, that applying the law “<a href="https://www.justice.gov.za/legislation/constitution/chp08.html">impartially and without fear, favour or prejudice</a>” requires that judges be allowed to dissent. This is not to diminish the value of judicial deliberation aimed at reaching consensus. Rather it is to make the point that forcing consensus would ignore the inextricable link between a judge’s freedom to dissent and their duty to apply the law impartially as a member of an independent judiciary.</p>
<p>The publication of dissenting judgments also makes judges answerable for their decisions.</p>
<p>The Constitutional Court, like other apex courts around the world, settles disagreement between judges through <a href="https://www.yalelawjournal.org/essay/five-to-four-why-do-bare-majorities-rule-on-courts">majority decision-making</a>. This is not simply a hand-raising exercise. Rather, judicial deliberation is a reason-giving practice. Judges are not only <em>entitled</em> – as an exercise of judicial independence – to voice their own opinion. They are also <em>obliged</em> to do so and to support their view with reasons.</p>
<p>The transparency of the court’s reasoned disagreement does not undermine its authority. On the contrary, dissent forces engagement with opposing views and, by inviting refutation, shows why one argument commanded the majority. </p>
<h2>Dissent as a counterpoint to political rhetoric</h2>
<p>But does all this hold true in troubled times, when majority decisions are denounced as “<a href="https://www.dailymaverick.co.za/article/2021-07-01-zuma-draws-from-the-patriarchs-playbook-as-he-insults-judge-sisi-khampepe/?utm_source=top_reads_widget">angry and emotional</a>” and dissents are distorted for political gain?</p>
<p>My answer is yes. Transparent and reasoned disagreement is the best antidote to the kind of noxious discourse that seeks to undermine public confidence in the court.</p>
<p>Nevertheless there is a caveat. Robust judicial debate should be welcomed. But any points of disagreement should be spelled out through reasoned argument that does not jeopardise collegiality or public confidence in the judiciary.</p>
<p>The court has, <a href="https://www.timeslive.co.za/news/south-africa/2017-12-30-how-mogoengs-fellow-judges-disagreed-with-him/">for the most part</a>, been beyond reproach on these scores. But the need for judicial discipline is heightened in politically divisive cases where the court’s own words may be used against it by a litigant on the losing side.</p>
<p>And this is the sting in the tail of this defence of dissents.</p>
<h2>Sting in the tail</h2>
<p>In the Zuma contempt case, the minority advanced strong reasoning but regrettably also resorted to rhetoric that provided a foothold for discrediting the court. Most troubling is the accusation that the majority created law that is “not just bad; it is unconstitutional” (para 191). Unsurprisingly, the minority’s valuable insights have been overshadowed by selective soundbites more likely to trend on Twitter than persuade in legal argument.</p>
<p>In the campaign donations case, Chief Justice Mogoeng invoked the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-s02.pdf">judicial oath</a> in support of his sympathetic stance towards the public protector. But in doing so, he fed a <a href="https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2021-07-04-justices-side-with-the-facts-not-the-faction/">political narrative</a> that judges are biased along factional lines – the very discourse he enjoined the majority to eschew.</p>
<p>Notwithstanding these slips in judicial voice, the court should offer no apology for its split judgments.</p>
<p>This is what hangs in the balance in Zuma’s rescission application: Will the court affirm both the value of the dissent and the finality of the majority decision? Or will the judges stubbornly rehash the debate that previously divided them and so fall prey to the attack on the court’s authority?</p>
<p>Somewhat paradoxically, if the virtues of dissent are to be vindicated, the court must now affirm in <em>unanimous</em> voice that it has settled the law – and settled it finally.</p><img src="https://counter.theconversation.com/content/164454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Taylor clerked at the Constitutional Court of South Africa and previously worked as a legal researcher at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State.</span></em></p>South Africa’s Constitutional Court should offer no apology for its split judgments.Helen Taylor, Post-Doctoral Researcher, South African Institute For Advanced Constitutional, Human Rights, Public and International Law (SAIFAC), University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644982021-07-14T14:17:26Z2021-07-14T14:17:26ZChaos in South Africa points to failures in the project to build a democracy<figure><img src="https://images.theconversation.com/files/411223/original/file-20210714-19-1n9h7om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African soldiers interrogate a pedestrian outside a mall in Soweto. </span> <span class="attribution"><span class="source">Photo by Emmanuel Croset/AFP via Getty Images</span></span></figcaption></figure><p>The spate of violence <a href="https://www.aljazeera.com/news/2021/7/13/worst-violence-in-years-spreads-in-south-africa-amid-zuma-jailing">that’s engulfed South Africa</a> shows that not all citizens have internalised constitutional democracy and the rule of law as the organising principle of the post-apartheid society. </p>
<p>Various interventions to institutionalise democracy were more focused on policy interventions and institution-building to safeguard it, but not on ensuring that it was embraced by the entirety of society, appreciating it as the basis of its evolution. </p>
<p>The violence started in KwaZulu-Natal following the imprisonment of the former president Jacob Zuma to serve a <a href="https://www.reuters.com/world/africa/south-africas-top-court-says-ex-leader-zuma-contempt-absences-2021-06-29/">15-month sentence</a> for contempt of the order of the Constitutional Court. </p>
<p>This was initially hailed as a <a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">victory for the rule of law</a>. But the subsequent rioting and mass looting of retail outlets shows it to have been a pyrrhic victory. In many ways, the edifice of the country’s constitutional democracy where the judicial authority is vested in the courts to institutionalise the rule of law is blown to smithereens.</p>
<p>This betrays the sacrifices of many to create an orderly society, where progress related to their selfless efforts had gathered pace over years. Just in a wink of an eye, all is going up in flames. </p>
<p>Beyond the pale in this rasping disobedience is the clamour of a war cry <a href="https://www.enca.com/news/supporters-call-zumas-release">demanding Zuma’s release</a>. Isn’t this treasonous, especially by those who use their influential standing in society to agitate for insurrections in the guise of protest? These concepts are not the same. The constitution states that citizens <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">have the right</a> to “assemble, demonstrate, picket and present petitions”, but “peacefully and unarmed”. This is what protest means.</p>
<p>Closely related to it is freedom of expression, which <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">does not include </a> “incitement of imminent violence or to cause harm”. Especially in the social media, <a href="https://qz.com/africa/2033328/south-africa-to-monitor-social-media-as-protests-rock-the-country/">reckless postings</a> with incendiary intentions to stoke violence, looting, and destruction of property incite insurrection – an uprising against the state. </p>
<p>This is lawlessness, not protest. </p>
<p>The country is held at ransom by those cajoling the state into concessions intended to belie the essence of its foundation based on the supremacy of the constitution and the rule of law. This is largely by those who are demanding that the law should apply to the former president differently. </p>
<p>This absurdity should not in any way be entertained lest it mark the onset of the death of the rule of law. </p>
<p>An important principle in the organisation of the post-apartheid society is that of equality before the law and that nobody is above it.</p>
<p>In my view state power should be unleashed to clamp down on the violence. But this isn’t a sustainable way of making people understand that South Africa is a constitutional democracy. In many ways the rioting shows that many South Africans haven’t grasped what it was that the country decided to become as a post-apartheid society.</p>
<h2>Dangers</h2>
<p>The violence and looting has spawned a situation of national danger for President Cyril Ramaphosa. As the commander-in-chief of the defence force it was within <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a64-97.pdf">his powers</a> to declare a state of emergency. <a href="https://www.news24.com/citypress/news/sandf-called-to-join-police-on-patrols-20210712">He did not</a>. Instead, he opted to consult widely for the next course of action should the situation not subside. </p>
<p>This has come to define his presidential disposition. The state of emergency is the intervention of the last resort to maintain or regain control over public affairs. The constitution makes <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a64-97.pdf">provision for it</a>. </p>
<blockquote>
<p>[When] the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency", the President can declare a state of emergency if such “is necessary to restore peace and order. </p>
</blockquote>
<p>A core element of this is suspending civil rights. In other words, when democracy as the organising principle of society is imperilled, undemocratic means can be used to save it.</p>
<p>Which raises the question: is the president’s cautious approach defensible? Haven’t the incidences of violence, which by their nature are tantamount to insurrections, and therefore create disorder, a reason enough for the declaration of state of emergency? </p>
<p>Despite Ramaphosa’s tough talk, and the <a href="https://www.france24.com/en/africa/20210712-s-africa-to-deploy-army-to-quell-violence-as-former-president-zuma-faces-court">deployment of troops</a>, thuggery continues unabated opportunistically preying on the credulity of the disadvantaged groups in society to make all the actions being taken look like a socioeconomic grievance. </p>
<p>But doesn’t this give us a hint of where the fault line may lie in institutionalising the country’s constitutional democracy?</p>
<p>Invoking state power to maintain order and stability is necessary. But it isn’t a sustainable way of making citizens internalise that South Africa is a constitutional democracy. </p>
<p>In many ways the insurrections suggest that many do not seem to have signed up to the concept that the rule of law would be the organising principle in democratic South Africa. Various interventions to institutionalise democracy were more focused on policy interventions and institution-building to safeguard it, but not on ensuring that it was embraced by the entirety of society. </p>
<p>Had this been the case, many would not have fallen into the trickery of not seeing the violence unleashed against democracy as the push back by the beneficiaries of corruption. In other words, for a democracy to endure, it must exist in the consciousness of society. </p>
<p>But how should South Africa go about this? </p>
<h2>The construction of a democracy</h2>
<p>This requires social institutions as subsystems that optimise co-existence to reassert their role in society, in the same way they animated patriotism in galvanising citizen participation in the making of <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">South Africa’s constitution</a>.</p>
<p>If the mayhem that besets the country is anything to go by, indications are that what became a social contract out of this exercise – where the powers and obligations of the state in relation to the rights and responsibilities of the citizens are defined – may not have been deliberately and systematically brought back into the people’s understanding of what it means to shape society’s consciousness.</p>
<p>In the hubris of the democratic breakthrough, social institutions as platforms to shape the nation’s character receded from this important role. </p>
<p>Much of this is glaring in the learning spaces, where education tends to focus more on forming the mind, and less on character formation. Many who are in the forefront of the mayhem that besets the country had interacted with education in their lives. Some are graduates. They are learned but lack civic character. </p>
<p>This calls for great introspection of the approach to education, lest the institutions of learning keep churning out miscreants that damage rather than build society.</p>
<p>It is time to introduce civic education at all levels of learning to cut across various disciplines. And it should emphasise citizenship as being about shared values of humanism, as enshrined in the constitution, where co-existence is about sustaining each other. </p>
<p>As a function of responsible citizenry, a good society makes democracy thrive. Its safety does not lie in the power of the state to exact obedience, but in the collective conscience of society. Social institutions are key to instilling this. </p>
<p>If this had existed, the Zuma moment which has gripped the country would have been averted as many would have known that South Africa is a constitutional democracy based on the rule of law.</p><img src="https://counter.theconversation.com/content/164498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mashupye Herbert Maserumule received funding from his postgraduate studies from the National Research Foundation(NRF). He is affiliated with the South African Association of Public Administration and Management (SAAPAM). He edits its scholarly publication, Journal of Public Administration. </span></em></p>After 1994 efforts were made to embed democracy. The focus was on policy and institution-building. What was missing was ensuring all South Africans were on board.Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644662021-07-13T17:47:48Z2021-07-13T17:47:48ZSouth Africa in flames: spontaneous outbreak or insurrection?<figure><img src="https://images.theconversation.com/files/411094/original/file-20210713-21-ocu5qe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Private armed security officers take a position near a burning barricade during a joint operation with South African Police Service officers in Jeppestown, Johannesburg.</span> <span class="attribution"><span class="source">Photo by Marco Longari/AFP via Getty Images</span></span></figcaption></figure><p>South Africans spent most of mid-July glued to their news outlets, from established media outlets to TikTok, from streaming news to old-fashioned printed words, to see just one thing: would Jacob Zuma blink? Would the country finally get some taste of revenge for the <a href="https://www.sastatecapture.org.za/">state capture</a>, looting, destruction of institutions and threats to the country’s democracy their former president had enabled and championed? Would the rule of law win? </p>
<p>Zuma blinked, with a few minutes to spare, and <a href="https://www.reuters.com/world/africa/south-africas-zuma-hand-himself-over-police-foundation-2021-07-07/">handed himself over to police</a>. An hour or so later he was booked into a rather comfy looking <a href="https://www.news24.com/news24/southafrica/news/estcourt-correctional-centre-inside-the-prison-that-will-house-a-former-president-20210708">“state of the art correctional facility”</a> in Estcourt (which had taken 17 years to refurbish).</p>
<p>The rule of law won. The institutions that had been so assiduously hollowed out under the <a href="https://www.amazon.com/Zuma-Years-South-Africas-Changing/dp/1770220887">nine years of his presidency</a> had flexed their new-found muscle. The Constitutional Court had long <a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">held firm</a>, the police were rather more wobbly, but despite much assegai-rattling by family members and the Zuma Foundation, into prison he went. No ANC leader expressed joy, <a href="https://www.sowetanlive.co.za/news/south-africa/2021-07-07-anc-saddened-by-jacob-zumas-imminent-15-month-incarceration/">only sorrow</a> that <a href="https://www.enca.com/news/zikalala-we-stand-zuma">the man had fallen so low</a>; for people not in such elevated positions, it was a rare <a href="https://www.news24.com/news24/southafrica/news/zumas-sentencing-has-lifted-the-mood-of-the-country-study-reveals-20210701">moment of jubilation</a> in the midst of a global pandemic that has us locked down, again.</p>
<p>Protests that had been low key since he was <a href="https://ewn.co.za/2021/07/09/zuma-supporters-intensify-protests-in-streets-of-kzn-causing-traffic-delays">arrested on Wednesday night</a> exploded into an an orgy of looting, marching, xenophobic attacks, arson, truck-burning, stabbing and shooting, and blockading of roads and freeways (among others) <a href="https://www.reuters.com/world/violence-spreads-south-africas-economic-hub-wake-zuma-jailing-2021-07-11/">by Sunday</a>. It seemed – and Zuma’s allies and (adult) children were quick <a href="https://www.dailymaverick.co.za/article/2021-07-13-duduzile-zuma-sambudla-from-pampered-diamond-queen-to-armchair-instigator-of-violence/">to preach the word</a> – that he was so popular and such an object of sympathy that a spontaneous outbreak of bloody violence and theft was unavoidable, and a dark portent if Zuma was not immediately released. Prescience seemed to have replaced profligacy.</p>
<p>The stakes were (and remain) exceptionally high. Thanks in part to the commission of inquiry into <a href="https://www.sastatecapture.org.za/">state capture and corruption</a> Zuma established and later refused to attend, Zuma is now known to have allowed the <a href="https://www.nytimes.com/2018/12/22/world/africa/gupta-zuma-south-africa-corruption.html">Gupta family</a>, using organised crime money-laundering vehicles, to bankrupt the state. As has been noted, fish rot from the head. From the time that he was <a href="https://www.sahistory.org.za/dated-event/president-thabo-mbeki-sacks-deputy-president-jacob-zuma">fired</a> by former president Thabo Mbeki (in 2005) to date, Zuma has deployed his infamous <a href="https://www.judgesmatter.co.za/opinions/using-stalingrad-tactics-to-delay-justice/">Stalingrad legal strategy</a>. In effect, he has been fighting every single item in court while adopting the victim stance of a man more sinned against than sinning.</p>
<p>Sadly, Zuma is not a Shakespearian hero, but a man of decidedly clay feet. For nine years as president, he outmanoeuvred pretty much all and sundry – he <a href="https://www.businesslive.co.za/bd/national/2017-03-31-zumas-11-cabinet-reshuffles-all-the-graphic-details/">reshuffled cabinets</a> to destabilise opponents; he forced the Whip and faced down multiple votes of no confidence; he allowed <a href="https://www.dailymaverick.co.za/article/2021-05-24-the-totalish-cost-of-the-guptas-state-capture-r49157323233-68/">R50 billion</a> to be stolen by his friends, <a href="https://www.bbc.com/news/world-africa-22513410">the Gupta family</a> – all now safely in Dubai – and ran state and party as <a href="https://www.iol.co.za/news/politics/edward-zuma-declares-former-president-jacob-zuma-will-not-go-to-jail-ded5716e-7dd1-4b77-ad26-414e81239c2b">both cash cow</a> and defensive wall. </p>
<p>He met his match in Cyril Matamela Ramaphosa, who <a href="https://theconversation.com/the-anc-has-a-new-leader-but-south-africa-remains-on-a-political-precipice-89248">succeeded him</a> as ANC and national president. Ramaphosa has moved with the cold, calculating methodology that proves him to be the real chess master (Zuma has a passion for the game). Ramaphosa has <a href="https://theconversation.com/precarious-power-tilts-towards-ramaphosa-in-battle-inside-south-africas-governing-party-158251">outmanoeuvred Zuma</a> and many of his allies in the ANC (such as secretary general Ace Magashule). He has done this by trying to resuscitate the organs of state, investigation and prosecution that had been severely damaged by his predecessor. </p>
<p>The rule of law – which took a pummelling over the last decade – seems to be out of rehab. Zuma may only be in prison for a contempt charge – but the notion that the first ANC leader in orange overall would be Zuma was not a fantasy that played out as realistic in most imaginations.</p>
<h2>Why the violence</h2>
<p>Many reasons have been offered for the violence, looting, racist bile and bloodshed that erupted. These include:</p>
<ul>
<li><p>the pent-up frustration of hungry and cold people facing few prospects for socio-economic improvement; </p></li>
<li><p>inequality and the gulf between the conspicuous consumption of the “made it” compared to others; </p></li>
<li><p>ethnic tensions within the ANC, with the president representing a “minority” tribe and apparently lacking legitimacy; </p></li>
<li><p>good old stereotypical Zulu nationalist violence was breaking out as it did in the early 1990s; </p></li>
<li><p>internal ANC factional tensions were spilling onto the streets; and more.</p></li>
</ul>
<p>All of these have some truth. Yet none provides a narrative thread that ties together these disparate issues and scattered but clearly organised acts of violence. Part of the gap in our understanding is how a middle-of-the-night incarceration of Zuma – albeit done in the blaze of TV arc lights – led to such a widespread and destructive but apparently spontaneous outbreak. </p>
<p>This narrative suits Zuma and his supporters perfectly: pity for the victimised former president unleashed patriotic fervour that was unstoppable, proving his popularity and victim status. Family, the Zuma Foundation and others all began pumping out the narrative – much as Zuma’s daughter tweeted the video of a gun firing bullets into a poster of Ramaphosa. Subtlety did not play much of a role.</p>
<p>But when the Minister of State Security <a href="https://www.timeslive.co.za/politics/2021-07-13-looting-and-violence-could-have-been-worse-intelligence-police-ministers/">reported</a> on the morning of Tuesday 13 July that her spies had managed to stop attacks on substations, planned attacks on ANC offices and in Durban-Westville prison, things began to look different. How did they know of the plans, and for how long? Who was doing the planning? How did they stop it?</p>
<p>When “impeccable sources in the intelligence service and law enforcement” <a href="https://www.news24.com/news24/southafrica/investigations/cops-fear-gun-battle-as-jacob-zumas-high-noon-approaches-20210707%22">warned</a> of arms caches at Zuma’s home, Nkandla; when <a href="https://www.bbc.com/news/world-africa-12689342">we recall</a> that the police admitted to “losing” some 20,000 weapons in the 2000s, as had the State Security Agency, we are permitted to ask uncomfortable questions.</p>
<p>Suddenly the acts look rather more organised and rather less spontaneous. </p>
<p>Neeshan Balton, executive director of the not-for-profit lobby group, the <a href="https://www.kathradafoundation.org/">Kathrada Foundation</a>, has suggested that part of the strategy was a wildfire – strike lots of matches and just let them burn whatever is in their path to destabilise the democratic project. </p>
<p>This too is premised on the existence of a plan.</p>
<p>The danger with suggesting that this was not at heart a set of random acts by poor people who were overcome by emotion at the thought of Zuma in prison but rather a (more or less well) planned and executed attempt to destabilise the state is that rather than <a href="https://mg.co.za/article/2018-11-19-statecaptureinquiry-gordhan-connect-the-dots-to-uproot-state-capture/">“joining the dots”</a> as Public Enterprises Minister Pravin Gordhan advised, one may be constructing a crazy conspiracy theory. </p>
<p>The definition of insurrection is to rise against the power of the state, generally using weaponry. Conspiracies exist. From <a href="https://www.news24.com/news24/southafrica/news/as-mpofu-threatens-another-marikana-ngcukaitobi-says-police-must-enforce-zuma-arrest-orders-20210707">dark warnings</a> of another massacre like the one at <a href="https://www.sahistory.org.za/article/marikana-massacre-16-august-2012">Marikana in 2012</a> should Zuma be touched, to planning sabotage against municipal infrastructure, and fanning the flames of xenophobic violence, it seems very difficult to ignore the planned insurrection at hand.</p>
<p>Poor and hungry people exist, and the state should be ashamed. But hungry people do not become violent looters on behalf of better-known looters who are in jail. They may well be available for mobilisation (looting, violence, marching) behind the organisers – but it is the organisers that need to be brought to book, and who must also face the rule of law.</p>
<p>Corruption thrives in a destabilised state with weak institutions. South Africa cannot be allowed back to that space because there will be no turning back.</p><img src="https://counter.theconversation.com/content/164466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Everatt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Corruption thrives in a destabilised state with weak institutions. South Africa cannot be allowed back to that space because there will be no turning back.David Everatt, Professor of Urban Governance, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1636122021-06-29T15:21:07Z2021-06-29T15:21:07ZHistoric moment as Constitutional Court finds Zuma guilty and sentences him to jail<figure><img src="https://images.theconversation.com/files/408919/original/file-20210629-20-kugx06.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma stands in the dock at a separate trial at the Pietermaritzburg High Court in May. </span> <span class="attribution"><span class="source">Photo by PHILL MAGAKOE/POOL/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s Constitutional Court has found former president <a href="https://www.sahistory.org.za/people/jacob-gedleyihlekisa-zuma">Jacob Zuma</a> guilty of contempt of court and sentenced him to <a href="https://www.news24.com/news24/southafrica/news/zuma-sentenced-to-jail-time-what-happens-next-we-ask-an-expert-20210629">15 months’ imprisonment</a>.</p>
<p>Clearly, this is a momentous, historic verdict, with profound legal and constitutional implications, and one that will have political reverberations. It will strengthen the hand of reform-minded President Cyril Ramaphosa, who is struggling to rebuild state institutions <a href="https://pari.org.za/betrayal-promise-report/">hollowed out during Zuma’s nine-year rule</a>, which ended in <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">early 2018</a>. The judgment fiercely makes the case for accountability over impunity. It serves to remind all South Africans that no one is above the law.</p>
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Read more:
<a href="https://theconversation.com/risks-and-rewards-for-south-african-president-as-he-takes-the-stand-at-corruption-inquiry-159925">Risks and rewards for South African president as he takes the stand at corruption inquiry</a>
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<hr>
<p>The ground-breaking <a href="https://www.news24.com/news24/columnists/guestcolumn/full-judgement-why-jacob-zuma-is-going-to-prison-for-15-months-20210629">judgment</a> was read out by Acting Chief <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/78-justice-sisi-khampepe">Justice Sisi Khampepe</a>, who began with these words: </p>
<blockquote>
<p>It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs.</p>
</blockquote>
<p>Never before has the Constitutional Court passed a custodial sentence, still less on a former democratically elected president.</p>
<p>This was one of several choices that the court had to make.</p>
<h2>Weighty matters</h2>
<p>The first question – whether there had been contempt of court – was straightforward to answer: Zuma had chosen not to contest the proceedings and had declined to offer any justification or denial of his decision to defy the order of the same court <a href="https://ewn.co.za/2021/02/01/defiant-zuma-says-won-t-abide-by-concourt-order-to-appear-at-zondo-inquiry">earlier this year</a>. In that decision it held that he should appear before the Zondo Commission, the <a href="https://www.sastatecapture.org.za/">judicial inquiry into state capture</a> and corruption in the country.</p>
<p>The commission’s legal team had come up with a strategy that, for once, outwitted Zuma. For almost two decades, Zuma has benefited from the strength of South Africa’s rule of law with his so-called <a href="https://definitions.uslegal.com/s/stalingrad-defense/">“Stalingrad strategy”</a> – taking every legal point and appealing every judgment against him.</p>
<p>Instead of going to a lower court, as would be customary in contempt of court proceedings, the Zondo Commission went directly to the Constitutional Court. The court accepted jurisdiction on the basis that it was its order that he was defying and because of the exceptional and urgent circumstances. </p>
<p>The public had an interest in having Zuma give evidence at the commission and respond to the grave allegations of corruption that have been made against him from his nine years in office. He ascended to the high office in May 2009 and was ousted from power by Ramaphosa following the latter’s election as president of the governing African National Congress in December 2017.</p>
<p>The consequence of the decision of the Constitutional Court to accept jurisdiction was that Zuma, having nowhere to appeal to, as it is the apex court, was bound to accept its ruling. </p>
<p>He must now present himself to his local police station within five days.</p>
<p>For the majority of seven justices, Khampepe found that, although the case had exceptional features – the fact that it involves a former president, with ongoing duties to respect and protect the constitution – he was not being treated exceptionally, as the minority judgment penned by two justices (<a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/222-justice-theron-leona-valerie-2">Leona Theron</a> and <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/74-justice-chris-jafta">Chris Jafta</a>) held.</p>
<p>The second, weightier decision for the court to take was whether to pass a coercive or punitive sentence. The former would, for example, have suspended the sentence provided that Zuma appear before the Zondo Commission; the latter would simply punish the contempt of court. </p>
<p>On this point, both the majority and minority judgments accepted that it would be futile and inappropriate to pass a coercive sentence because Zuma had made it clear that he would not appear in front of the commission.</p>
<p>This court is not “naive”, Justice Khampepe wrote:</p>
<blockquote>
<p>I do not think this Court should be so naïve as to hope for his compliance with that order. Indeed, it defies logic to believe that a suspended sentence, which affords Mr Zuma the option to attend, would have any effect other than to prolong his defiance and to signal dangerously that impunity is to be enjoyed by those who defy court orders.</p>
</blockquote>
<p>The court has, indeed, become very wise to Zuma’s tactics over the years.</p>
<p>The majority of the judges held that Zuma’s <a href="https://theconversation.com/how-zuma-uses-war-metaphor-to-fight-allegations-of-graft-in-south-africa-156223">public outbursts</a> before and after the contempt proceedings had been brought, in which he attacked the honesty of the judges of the Constitutional Court and impugned the integrity of the rule of law, should be taken into account when determining the punishment.</p>
<p>For their part, the minority held that these considerations were extraneous to the core contempt matter. The minority judgment further argued that to send Zuma to prison without a criminal standard trial was to infringe his fair trial rights contained in section 35 of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>.</p>
<p>The majority rejected this argument on the basis that since he was not a criminal defendant – contempt proceedings are civil proceedings not criminal – there could be no breach of a right that is not held.</p>
<p>In passing sentence, the majority judgment referred extensively to the “calculated and insidious” attacks on the rule of law by Zuma. Again, the final paragraph of the substantive part of Khampepe’s judgment was sweeping:</p>
<blockquote>
<p>Quantifying Mr Zuma’s egregious conduct is an impossible task. So, I am compelled to ask the question: what will it take for the punishment imposed on Mr Zuma to vindicate this Court’s authority and the rule of law? In other words, the focus must be on what kind of sentence will demonstrate that orders made by a court must be obeyed and, to Mr Zuma, that his contempt and contumacy is rebukeable in the strongest sense. With this in mind then, I order an unsuspended sentence of imprisonment of 15 months. I do so in the knowledge that this cannot properly capture the damage that Mr Zuma has done to the dignity and integrity of the judicial system of a democratic and constitutional nation. He owes this sentence in respect of violating not only this Court, nor even just the sanctity of the Judiciary, but to the nation he once promised to lead and to the Constitution he once vowed to uphold.</p>
</blockquote>
<p>This was a passionate as well as eloquent defence of the constitution and the rule of law. Immediately afterwards, Mzwanele Manyi, the spokesman for the Zuma Foundation, described it as <a href="https://www.youtube.com/watch?v=Pw7T6c7Hme0">“emotional”</a>. </p>
<p>But, but for once, Zuma has run out of legal runway and must now face the consequences of his action.</p>
<h2>A compelling narrative</h2>
<p>South Africa has many problems, and inter-locking fiscal, economic and health crises. But underestimate the strength of its rule of law and the independence of its judiciary at your peril – as Zuma has now discovered.</p>
<p>There is something sad and tragic about his steady but inexorable fall from grace – a motif for the country, in one sense. And yet there is something so high-minded and noble about how the country’s constitution has prevailed over his abuse of power – a far more compelling narrative.</p><img src="https://counter.theconversation.com/content/163612/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a founding partner of political risk consultancy, The Paternoster Group, and a member of the advisory council of the Council for the Advancement of the South African Constitution.</span></em></p>South Africa has many problems. But, as Jacob Zuma has found out, the strength of its rule of law and the independence of its judiciary should not be underestimated.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1593382021-04-22T15:08:25Z2021-04-22T15:08:25ZSouth Africa is set to appoint a new chief justice. The stakes have never been so high<figure><img src="https://images.theconversation.com/files/396033/original/file-20210420-13-1izfv92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African chief justice Mogoeng Mogoeng's term ends in September. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>By October, South Africa’s Chief Justice, <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a>, will have finished his 12-year term at the helm of the Constitutional Court. How will his successor be selected, and what qualities are needed by the holder of this high office?</p>
<p>To answer these questions we need to understand the context. This is because the country’s judiciary has been increasingly drawn into party political wrangling and contestation.</p>
<p>Any form of constitutional democracy which allows judicial review of the exercise of public power thrusts the courts into the political limelight. Inevitably, acts and decisions of parliament, the president and cabinet will be challenged against the constitutional framework. The <a href="https://www.gov.za/about-government/contact-directory/judicial-institution/judicial-institution/superior-courts-south#">superior courts</a> of the country provide the forum in which this plays out. </p>
<p>If there is no rule of law, brute force, random acts of violence and popular anarchy become the avenues for settling scores. In South Africa, the determination never to repeat the devastating legacies of apartheid resulted in <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">“the supremacy of the constitution and the rule of law”</a> being enshrined as fundamental values, justiciable and enforceable by the courts.</p>
<p>This has inevitably raised the political profile of the judges, especially their leaders, given that they effectively have the final say on what the words in the constitution mean. </p>
<p>The judicial process is thus hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality. Without such qualities, the judiciary runs the risk of losing its legitimacy among the public, ultimately its surest form of protection from interference.</p>
<h2>Out of sync</h2>
<p>The exercise of constitutional authority in South Africa is constrained by the checks and balances inherent in the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">doctrine of the separation of powers</a>. It requires each branch of government (parliament, the cabinet and the courts) to show mutual respect to the others.</p>
<p>If one branch of government fails in its regulatory role, an imbalance is created. In turn this means that other branches are subject to unjustified pressure.</p>
<p>This happened in South Africa between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>, when the regime of former President Jacob Zuma manifestly and <a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0">corruptly abused its constitutional authority</a>. Parliament failed dismally to fulfil its constitutional obligation to <a href="https://www.dailymaverick.co.za/article/2021-04-19-speaker-thandi-modise-does-damage-control-apologises-for-parliament-seeming-to-be-sleepist-and-pleads-for-more-resources/">hold the executive accountable</a>. </p>
<p>As a result, those who wished to challenge such abuse of power and to uphold the constitution, approached the courts. This increasing resort to the courts came to be known as <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">“lawfare”</a>. The more frequently the courts found against actions and decisions of the government, the more virulently the political leadership of the governing African National Congress <a href="https://www.sowetanlive.co.za/news/2011-08-18-full-interview-ancs-mantashe-lambasts-judges/">criticised the judges</a>.</p>
<p>The level of such lawfare has subsided since President Cyril Ramaphosa came to power in <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">February 2018 </a>, with one exception. Those whose abuse of power has been exposed through the <a href="https://www.sastatecapture.org.za/">Zondo Commission into state capture</a> or through the investigative media have <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">vilified the courts</a> generally in public, or targeted specific judges for <a href="https://theconversation.com/how-zuma-uses-war-metaphor-to-fight-allegations-of-graft-in-south-africa-156223">scandalous attack</a>.
This is the context in which a new Chief Justice will be appointed in South Africa later this year.</p>
<h2>What should be taken into account</h2>
<p>Formally, the constitution is clear: <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">section 174 (3)</a> provides that</p>
<blockquote>
<p>The President as head of the national executive, after consulting the [Judicial Service Commission] and the leaders of parties represented in the National Assembly, appoints the Chief Justice.</p>
</blockquote>
<p>This means that the president must act in consultation with his cabinet, and after consultation with the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> and other political leaders (consultation is required but the advice given need not be followed).</p>
<p>Given the highly contested nature of the judicial process, I would argue that the following criteria should be uppermost in Ramaphosa’s mind when selecting the next chief justice:</p>
<ul>
<li><p>Strong credentials as an intellectual leader on the Bench, enjoying the respect of their peers in the superior courts. The Chief Justice needs to be able to be confident that, having taken a stance on behalf of the judiciary as a whole, the judges will support him or her;</p></li>
<li><p>A clear proponent of the transformative nature of the entire constitutional framework, with a jurisprudential track record to back up such a stance. In other words, that a judge has given judgments in the past that show their understanding of – and commitment to – transformation to achieve social justice. The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> demands this;</p></li>
<li><p>Proven capacity to lead the judiciary as a whole. Precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project. An engaged and wise leader will ensure this;</p></li>
<li><p>An impressive record as a manager, preferably within the administration of justice. The <a href="https://nationalgovernment.co.za/units/view/28/office-of-the-chief-justice-ocj">Office of the Chief Justice</a> has been a department of state for a number of years. This means that the incumbent must also give operational and administrative guidance to the entire administration of justice. At the same time, the Chief Justice must maintain his or her judicial profile by presiding over matters in the apex court;</p></li>
<li><p>Manifest ability to engage credibly with the general public, reassuring it of the fair-minded, principled, fearless, and incorruptible nature of those appointed as judges, and of the superior court system as a whole. </p></li>
</ul>
<h2>Independence is key</h2>
<p>Furious controversies have been sparked by the failure of the current Chief Justice Mogoeng to <a href="https://www.businesslive.co.za/bd/national/2021-03-04-chief-justice-mogoeng-mogoeng-chided-for-wilful-misconduct-over-israel-comments/">separate his religious views</a> from his public office.</p>
<p>His successor must tread carefully when tempted to enter the broader political terrain. This is a key quality. Legitimacy (in the sense of public trust and confidence) is the final guarantor of judicial independence. Without it the courts are susceptible to party political abuse and undermining. The judiciary needs a strong, principled, articulate and fearless person to lead it.</p>
<p>These are high stakes indeed. The appointment of the next Chief Justice is a matter which should concern all South African and, I would argue, those who value the rule of law across the continent and beyond.</p><img src="https://counter.theconversation.com/content/159338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has received funding in the past from the National Research Foundation of South Africa.. He serves as a Director of Freedom under Law and on the Executive Committee of the Council for the Advancement of the South African Constitution (CASAC). This article is written in his personal capacity, and it does not necessarily reflect the views of any of the above bodies.. </span></em></p>The judicial process in South Africa is hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1543872021-02-02T14:54:21Z2021-02-02T14:54:21ZPresidents who subvert democracies they vowed to protect can hit a brick wall: ask Jacob Zuma<figure><img src="https://images.theconversation.com/files/381719/original/file-20210201-21-1q502rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma says he won't comply with a Constitutional Court order to appear before a commission on corruption. </span> <span class="attribution"><span class="source">EFE-EPA/Yeshiel Panchia </span></span></figcaption></figure><p>It can be tough when you are a former president in a democracy you have attempted to subvert, especially when that democracy comes back to bite you. Former South African president Jacob Zuma is finding this out the hard way.</p>
<p>Zuma is holed up in his expansive homestead in <a href="https://www.bbc.com/news/world-africa-26631460">Nkandla</a>, KwaZulu-Natal, since being ousted from the presidency <a href="https://www.bbc.com/news/world-africa-43066443">in February 2018</a>. His leadership of the governing African National Congress (ANC) ended with the election of his nemesis, Cyril Ramaphosa, <a href="https://theconversation.com/the-anc-has-a-new-leader-but-south-africa-remains-on-a-political-precipice-89248">in December 2017</a>.</p>
<p>Since then, Zuma (78) has spent his retirement engaged in defensive action to stave off the threat of prosecution for past malfeasance going back two decades.</p>
<p>But he appears to be running out of road on a few fronts. Firstly, he has lost the battle to prevent the National Prosecuting Authority <a href="https://theconversation.com/president-zuma-loses-bid-to-dodge-criminal-charges-but-will-he-have-the-last-laugh-85703">from arraigning him</a> on charges of corruption and racketeering relating to a <a href="https://www.corruptionwatch.org.za/timeline-of-the-arms-deal/">notorious 1998 arms deal</a>. The deal to equip the military amounted to R30 billion. </p>
<p>Worse may follow. He’s in a tight corner following his refusal to appear before a commission of inquiry into corruption that’s been running <a href="https://www.news24.com/news24/Analysis/the-state-capture-inquiry-what-you-need-to-know-20180819">since August 2018</a>. The <a href="https://www.statecapture.org.za/">Zondo Commission</a> was set up to hear allegations about grand corruption during his presidency between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 and February 2018</a>. </p>
<p>Zuma has been asked to appear before the commission. He did appear – albeit reluctantly. And then he <a href="https://theconversation.com/zuma-plays-cat-and-mouse-with-corruption-inquiry-it-may-be-a-high-risk-strategy-120695">walked away</a> when confronted with questions he didn’t want to answer. </p>
<p>This decision was taken to the <a href="https://www.dailymaverick.co.za/article/2021-01-28-final-order-concourt-rules-jacob-zuma-must-appear-and-answer-questions-at-zondo-commission/">Constitutional Court</a>, where Zuma recently suffered a defeat in his efforts to challenge the constitutionality of having to appear. </p>
<p>He has since said <a href="https://ewn.co.za/2021/02/01/defiant-zuma-says-won-t-abide-by-concourt-order-to-appear-at-zondo-inquiry">he won’t comply</a> with the court ruling. </p>
<p>He now faces the prospect of being jailed. </p>
<p>Zuma shares this ignominy with his American counterpart, former US president Donald Trump, who, like him, faces legal consequences for his attempts at subverting democracy while in office. Both have demonstrated their contempt for constitutional constraints, using their power as president to destroy institutions of state.</p>
<p>Going to jail for subverting democracy is less than edifying. In Zuma’s case it would be an particularly ignominious final chapter of his life. He has been in jail before, but for reasons that were noble, alongside extraordinary men and women who fought for freedom. </p>
<p>He served 10 years at the Robben Island Maximum Security Prison, <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">from 1963 to 1973</a>, for taking part in the sabotage operations of <a href="https://www.sahistory.org.za/article/umkhonto-wesizwe-mk">Umkhonto Wesizwe</a>, the military wing of the then banned ANC, against apartheid. He was 21 when he started serving his sentence.</p>
<h2>Similar paths</h2>
<p>Trump <a href="https://www.usatoday.com/story/opinion/2019/09/04/trump-presidency-spawns-conflicts-of-interest-personal-profits-column/2197263001/">used the presidency</a> to build up his business empire and stave off its mounting debt. Zuma and his family aligned themselves to the <a href="https://www.bbc.com/news/world-africa-22513410">Gupta family</a>, which stands accused of orchestrating the capture of the state for personal profit.</p>
<p>Testimony before the Zondo commission has brought fresh claims to light about how he went about this enterprise, and the extent of it. Even for South Africans who have been provided with a mountain of fresh allegations on his malfeasance since he left office, the latest testimony has <a href="https://www.politicsweb.co.za/documents/sydney-mufamadis-affidavit-to-the-zondo-commission">been shocking</a>. It has included steps he took to <a href="https://www.sowetanlive.co.za/news/south-africa/2021-01-27-zondo-hears-more-of-ssas-illicit-flow-of-millions/">turn the intelligence services</a> into his personal instrument and use them to undermine those who opposed him within the ANC.</p>
<p>The analogies with Trump might seem distant. But they aren’t. Both men stand accused of subverting democratic processes and institutions they were duly elected to protect. They swore an oath to do so.</p>
<p>For his part, Trump is <a href="https://edition.cnn.com/2021/01/31/politics/trump-new-lawyers/index.html">preparing to face his impeachment</a> by Congress for inciting the storming of the Capitol by his right-wing supporters in a bid to overturn the outcome of an election he lost. If he were to be successfully impeached, he would lose his presidential pension and be banned from running again for federal office. </p>
<figure class="align-center ">
<img alt="A man with thinning blond hair, wearing a black overcoat and a red tie speaks at a podium." src="https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/381900/original/file-20210202-13-19fo18t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former US President Donald Trump’s legal woes are mounting.</span>
<span class="attribution"><span class="source">EFE-EPA/Stefani Reynolds / pool</span></span>
</figcaption>
</figure>
<p>The stakes for both Trump and Zuma are high. Both are focused on the future, rather than trying to rescue their reputations in history. Both represent a major threat to democracy. </p>
<h2>Zuma will play the game to the final denouement</h2>
<p>Oh yes, it can be tough being a former president, but make no mistake, Zuma will play the game in the way he know best, by subordinating the law to politics. </p>
<p>Zuma is skilled at <a href="https://theconversation.com/zuma-shows-once-again-that-hes-adroit-at-playing-to-the-gallery-120779">playing the victim</a>, reckoning that his best defence is to rally support within the ANC, where he still enjoys support, and raise the political costs of pursuing him through the courts.</p>
<p>He knows well that if he is successfully prosecuted for corruption and sentenced to jail, even if only for a symbolic time, those who backed him during the era of state capture and shared the spoils will fear that the prosecutors will be emboldened to come knocking on their door. </p>
<p>The ANC remains riven with factionalism, and with President Ramaphosa seemingly unable to stamp his authority upon the party, Zuma is likely to play for a political deal which will continue to allow him his freedom, even if he is convicted in court.</p>
<h2>Democracy and accountability</h2>
<p>For Trump, the impeachment process is only a forerunner of charges likely to be filed by New York State relating to <a href="https://www.nytimes.com/interactive/2020/09/27/us/donald-trump-taxes.html">his tax returns</a>, very possibly alleging fraud and criminality.</p>
<p>South Africa’s Constitutional Court rebuke to Zuma in its latest judgment reminds him that no-one, not even the president, is above the law. </p>
<p>The apex court is reminding Zuma that the demand for accountability is at the heart of democracy. The US Democrats’ drive to impeach Trump is restating that same principle: that being a former president should not grant any special privileges.</p>
<p>The message is clear. Democracy demands that both Trump and Zuma be held to account.</p><img src="https://counter.theconversation.com/content/154387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Zuma shares ignominy with former US president Donald Trump who, like him, subverted democracy while in office.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1222092019-08-22T09:36:33Z2019-08-22T09:36:33ZCritics of South Africa’s judges are raising the temperature: legitimate, or dangerous?<figure><img src="https://images.theconversation.com/files/288903/original/file-20190821-170946-1ika9zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Chief Justice Mogoeng Mogoeng has had to intervene to protect judges from unfair criticism.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>The South African judiciary is once more centre stage in the political drama unfolding around the <a href="https://www.moneyweb.co.za/news-fast-news/south-african-corruption-fighter-seen-amplifying-anc-battles/">battle for supremacy</a> within the governing African National Congress (ANC). </p>
<p>In any constitutional democracy worth the name, the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution.</p>
<p>If the judges act independently and impartially (as prescribed in <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-08.pdf">section 165</a> of South Africa’s Constitution), their judgments will inevitably, on occasion, displease party politicians and members of the Executive.</p>
<p>And when the political process increasingly frustrates the enforcement and implementation of the Constitution, politicians and civil society will turn to the courts to seek endorsement of their concerns. </p>
<p>These actions, now known in South Africa as a form of <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2019-releases/lawfare-judging-politics-in-south-africa-detail?Itemid=6">“lawfare”</a>, frequently place the courts in an awkward position. That’s because they have to rule on emotive political questions. But, provided that they resist the temptation to exceed their assigned constitutional role, the judges must engage with the issues and attempt to resolve the disputes presented to them.</p>
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Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>Judges thus function on the political plane, not in a party political sense, but because they exercise public authority.</p>
<h2>Judicial accountability</h2>
<p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence. </p>
<p>Accountability is achieved by judges sitting in open court and through their work being critically analysed through the media and the legal profession. Judges are also held in check by the necessity that they justify their decisions with reasoned judgments, which can be appealed to higher courts.</p>
<p>The right to free expression encourages critical engagement with court judgments. This is lawful, provided that it doesn’t incite violence, amount to propaganda for war, or advocate hatred accompanied by incitement to harm <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">section 16(2) of the Constitution</a>.</p>
<p>There have been times in the past when the courts have come under attack from politicians. For example, this happened when the <a href="https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_24.htm">appeal court stopped the apartheid regime</a> in its early attempts to remove coloured men from the voters’ roll in the 1950s.</p>
<p>In the early 2000s, the then Minister of Health Manto Tshabalala-Msimang resented the Constitutional Court judgments <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">compelling the state</a> to provide life-saving HIV medication.</p>
<p>These disputes pitted the elected government of the day against the top court.</p>
<p>More recent cases have involved contestation between factions within the governing party. For example, some in the ANC have complained that the courts were <a href="https://mg.co.za/article/2008-07-04-anc-boss-accuses-judges-of-conspiracy-against-zuma">exceeding their authority</a> when they declared the conduct by former President Jacob Zuma and some of his close associates unlawful. </p>
<p>These criticisms didn’t seem to threaten the courts’ constitutional role, or the judges themselves.</p>
<p>But over the past few months the mood has shifted palpably and become more menacing.</p>
<p>The volatile political atmosphere in the country, and the litany of judgments handed down <a href="https://mg.co.za/article/2019-07-29-high-court-suspends-public-protectors-remedial-action-on-sars-rogue-unit">against the current Public Protector</a> as well as <a href="https://mg.co.za/article/2019-06-06-eff-suffers-second-court-defeat-in-a-week">against the opposition Economic Freedom Fighters</a> (EFF), have escalated the temperature to dangerous levels.</p>
<p>This holds potential harm for the judiciary.</p>
<h2>Attacks on judges</h2>
<p>The most vindictive and undermining attacks – including the use of threatening and populist rhetoric – have come from the leader of the EFF, Julius Malema. He has characterised the courts and individual judges who have found against the Public Protector or the EFF in <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">denigrating terms</a>. </p>
<p>For example, he referred to the race of one judge who ruled against the Public Protector, and demeaned the standing of another black female judge in another such case. Most threateningly, in one attack he said that if the courts continued to find in the manner in which they had, the EFF might have to return “<a href="https://www.news24.com/SouthAfrica/News/advocates-body-slams-effs-julius-malema-for-his-attack-on-sas-judges-20190816">to the bush</a>”.</p>
<p>Malema is one of the six Members of the National Assembly representing Parliament on the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/members-of-the-jsc">Judicial Service Commission</a>, which is responsible for appointing judges. At the very least he should resign or recuse himself from such a role given his recent outbursts.</p>
<p>But are there no limits to being critical of the judiciary? </p>
<h2>Protections</h2>
<p>Judges can’t get involved in popular political exchanges, particularly when the charges levelled at them are irresponsible, sinister and increasingly personal. </p>
<p>So, what can be done to preserve their integrity and fearless pursuit of constitutional governance?</p>
<p>Firstly, the Chief Justice as head of the judiciary has a responsibility to speak out in its defence. Chief Justice Mogoeng Mogoeng <a href="https://www.politicsweb.co.za/politics/general-gratuitous-criticism-of-judiciary-unaccept">did so</a> when criticism from the Zuma administration became irresponsible. </p>
<p>Secondly, the legal profession and public commentators can come to the courts’ support. The General Council of the Bar has <a href="https://www.timeslive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">just done so</a>. </p>
<p>Thirdly, South African law recognises a form of the crime of contempt of court, known as “scandalising the court”. In a 2001 case, the Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2001/17.html">found that</a> freedom of expression should not be granted the exalted status in South Africa which it enjoyed in the US. It also said that a balance needed to be achieved between “the commitment to open and accountable government” and speech which was “likely to damage the administration of justice”.</p>
<p>In other words, those who recklessly criticise judges run the risk of being prosecuted for criminal conduct. This is particularly the case when statements lead to an unwarranted erosion of public confidence in the courts as a legitimate governmental institution. </p>
<p>As <a href="http://www.justice.gov.za/sca/judgments/sca_2007/sca07-056.pdf">stated by Appeal Justice Nugent in 2007</a>:</p>
<blockquote>
<p>…If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms … are also compromised.</p>
</blockquote>
<h2>Need for caution</h2>
<p>Those who value the rights and processes enshrined in the South African Constitution should be alarmed by the threatening disregard for them displayed by critics like Malema. And they should speak out in support of the lawful exercise of judicial authority. </p>
<p>I would further argue that the critics should pause, and ask themselves to which constitutional institution they will turn for protection in the future, their intemperate outbursts having undermined the courts.</p><img src="https://counter.theconversation.com/content/122209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder is a director of Freedom under Law and a member of the Advisory Council for the Advancement of the South African Constitution (CASAC). He writes in his personal capacity.</span></em></p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209022019-07-24T11:28:33Z2019-07-24T11:28:33ZStorm around South Africa’s public protector shows robustness, not a crisis<figure><img src="https://images.theconversation.com/files/285494/original/file-20190724-110158-1j5zi8m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Public Protector, Busisiwe Mkhwebane.</span> <span class="attribution"><span class="source">EPA-EFE/Nic Bothma</span></span></figcaption></figure><p>Seemingly effective constitutional institutions can be quickly undermined by the actions of the people who serve in them. If we didn’t know that already, the South African Constitutional Court’s recent <a href="http://www.saflii.org/za/cases/ZACC/2019/29media.pdf">decision</a> in the Reserve Bank case makes the point crystal clear. </p>
<p>In her response to the Bank’s application to set aside certain remedial action, the Court found that the Public Protector, <a href="https://www.gov.za/about-government/contact-directory/chapter-9/chapter-9/public-protector-office">Busisiwe Mkhwebane</a>, acted in such bad faith as to justify the imposition of a <a href="https://www.timeslive.co.za/news/south-africa/2019-07-22-public-protector-busisiwe-mkhwebane-must-pay-after-falsehoods-over-bankorp/">personal costs order</a>.</p>
<p>The Public Protector’s office, previously lauded for its investigation into the illegal use of public money on former President Jacob Zuma’s private <a href="https://cdn.24.co.za/files/Cms/General/d/2718/00b91b2841d64510b9c99ef9b9faa597.pdf">Nkandla homestead</a>, is consequently now the subject of anxious public debate.</p>
<h2>The big worries</h2>
<p>Two concerns, in particular, have been raised. </p>
<p>The first has to do with whether the Constitutional Court’s decision reveals any flaws in the design of the country’s <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">1996 Constitution</a>. </p>
<p>Should such significant powers have been invested in the <a href="https://nationalgovernment.co.za/units/view/59/Public-Protector">Public Protector’s office</a> when, as we can now see, they are vulnerable to abuse?</p>
<p>The second concern relates to the <a href="https://www.iol.co.za/news/politics/3-times-the-courts-set-aside-publicprotector-busisiwe-mkhwebanes-reports-29684337">raft of litigation</a> in which the Public Protector is <a href="https://citizen.co.za/news/south-africa/courts/2158516/judgment-reserved-in-gordhan-vs-mkhwebane-rogue-unit-report-matter/">involved</a>, and Mkhwebane’s own recent threat to go to court to oppose any attempt by Parliament to remove her. </p>
<p>Is this yet more evidence of the descent of the country’s constitutional democracy into so-called “lawfare”?</p>
<h2>Constitutional design flaws?</h2>
<p>The Public Protector’s powers are set out in <a href="http://www.justice.gov.za/legislation/constitution/saconstitution-web-eng-09.pdf">Section 182(1)(a)</a> of the Constitution. It states the office is there</p>
<blockquote>
<p>to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice.</p>
</blockquote>
<p>These are indeed significant powers that both the previous and present incumbents of the office have used to telling effect. But they are no broader than they need to be to give the office the requisite teeth.</p>
<p>The more important section perhaps is <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996-chapter-9-state-institutions-supporting#194">section 194</a>, on the removal of the Public Protector. It provides that this may occur “on the ground of misconduct, incapacity or incompetence”, following a committee hearing and then a two-thirds majority vote by the National Assembly.</p>
<p>Again, there is nothing obviously wrong with this provision. Design the removal procedure in a way that makes it too easy to activate and you weaken the institution. Make it too hard to use and you licence an individual to become a loose cannon. Section 194 seems to get this balance right.</p>
<p>Beyond this, the proper functioning of the Public Protector’s office depends on two things: the courts’ preparedness to use their review powers to overturn any unwarranted findings and informed public scrutiny of the Public Protector’s actions. No constitutional-design features, however prescient, can make up for the absence of those two factors.</p>
<p>Fortunately, South Africans know the value of judicial independence. And the example set by the previous Public Protector, <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">Thuli Madonsela</a>, has made them care enough about the institution to defend it when threatened.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">How South Africa’s public protector has set a high bar for her successor</a>
</strong>
</em>
</p>
<hr>
<p>Thus, as broad as the Public Protector’s powers are, they are tempered by powerful and independent courts and by an active and engaged civil society.</p>
<p>What about the second concern? </p>
<h2>Is litigation replacing politics?</h2>
<p>Is the <a href="https://citizen.co.za/news/south-africa/courts/2158516/judgment-reserved-in-gordhan-vs-mkhwebane-rogue-unit-report-matter/">current round of litigation</a> involving the Public Protector another worrisome example of the phenomenon of lawfare? </p>
<p>Or does it in fact indicate something fundamental about how constitutional democracies work?</p>
<p>The term <a href="https://projects.iq.harvard.edu/johncomaroff/john-comaroff-explains-lawfare">“lawfare”</a> was coined by expatriate South African anthropologists Jean and John Comaroff. In its original form, it describes a situation in which the law is used to pursue political ends, both by the politically powerful and the politically weak.</p>
<p>The term has been popularised in South Africa by Judge Dennis Davis and lawyer Michelle Le Roux, whose recently published <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2019-releases/lawfare-judging-politics-in-south-africa-detail?Itemid=6">book</a> deploys it as a central concept. In their usage, lawfare connotes the worrisome tendency in post-apartheid South Africa for disputes that previously would have been settled politically to be resolved legally.</p>
<p>The Public Protector example shows there is some empirical basis for this concern. In addition to all the <a href="https://theconversation.com/dramatic-night-in-south-africa-leaves-president-hanging-on-by-a-thread-57180">litigation surrounding Nkandla</a> and the <a href="http://www.saflii.org/za/cases/ZACC/2019/29media.pdf">Reserve Bank case</a>, there are now two more judicial review applications. One involves <a href="http://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-report-public-protector">President Cyril Ramaphosa</a>; the other, <a href="https://www.timeslive.co.za/politics/2019-07-23-pravin-gordhans-court-battle-with-busisiwe-mkhwebane-kicks-off/">Public Enterprises Minister Pravin Gordhan</a>. </p>
<p>All of this suing and countersuing indeed looks like the waging of political battles through law. But is lawfare in this form the worrisome phenomenon it is made out to be?</p>
<p>The institution of constitutional review, by definition, exposes legislative and executive conduct to judicial scrutiny. It follows that the mere fact that political disputes are being waged through the courts and other constitutional institutions is not necessarily a cause for concern.</p>
<p>It doesn’t mean that any single instance of recourse to the courts is legally inappropriate, since such a conclusion depends on an assessment of the legal merits of the claim in each case. It also doesn’t mean that the courts are being politicised because that in the end depends on how they respond and what the public makes of their response.</p>
<p>On its own, therefore, the concept of lawfare has no analytic traction. It refers to a real phenomenon, but it offers no normative standard by which to assess alleged instances of the abuse of the judicial process.</p>
<h2>Finding comfort</h2>
<p>In the absence of a general standard, each instance of lawfare has to be assessed on its own terms. In this case, the appropriate conclusion about the Constitutional Court’s finding against the Public Protector is that there’s much to be comforted by.</p>
<p>The judgment – and before that, the North Gauteng High Court’s <a href="https://mg.co.za/article/2018-02-16-public-protectors-absa-bailout-report-set-aside">decision</a> – shows that the judiciary is playing its appropriate role. By extending the existing provision for personal costs orders to this kind of case they have developed a midway accountability mechanism between the setting aside of the Public Protector’s remedial orders and the more drastic step, which may yet still come, of her removal from office.</p>
<p>If there is a concern, it is that the courts have once again been forced to act as a last line of defence. At just the time that it appeared that the Public Protector was emerging as a strong institution supporting democracy, it has been undermined by the actions of its current head.</p>
<p>This shows South Africa is still struggling to broaden the institutional base of its constitutional democracy so that it has multiple veto points at which to check the abuse of power. </p>
<p>To function effectively, constitutional institutions also need to be infused with values and traditions so that they are less dependent on the whims of particular office bearers.</p>
<p>This is not a uniquely South African problem. The US’s travails under President Donald Trump after 240 years of constitutional democracy are a powerful reminder that the fight for effective institutions and lived constitutional values never really ends.</p>
<p>Constitutionalism is an aspirational ideal in this sense, rather than a finite goal that can be achieved once and for all. Nevertheless, if the vigour of the public debate surrounding the Public Protector is anything to go by, it is an ideal that appears to be very much alive and kicking in South Africa.</p><img src="https://counter.theconversation.com/content/120902/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theunis Roux does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In this case, the appropriate conclusion about the Constitutional Court’s finding against the Public Protector is that there’s much to be comforted by.Theunis Roux, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/995292018-07-10T14:32:37Z2018-07-10T14:32:37ZObama’s Mandela lecture comes at an auspicious time for democracy<figure><img src="https://images.theconversation.com/files/226898/original/file-20180710-70051-1vdirya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former US president Barack Obama is due to deliver the 2018 Nelson Mandela Annual Lecture in Johannesburg. </span> <span class="attribution"><span class="source">EPA-EFE/Tannen Maury</span></span></figcaption></figure><p>Former US President Barack Obama will aim high with his Nelson Mandela Annual Lecture <a href="https://www.nelsonmandela.org/content/page/annual-lecture-2018">in Johanesburg</a> on July 17th. According to his close adviser and former speechwriter Benjamin J. Rhodes, Obama views this as the most important speech he has given since leaving the White House, one that will set the tone for his <a href="https://www.nytimes.com/2018/04/23/us/politics/obama-mandela-south-africa-speech.html">post-presidency</a>.</p>
<p>Obama must deliver a more ambitious, activist, and forward-looking address than his eloquent remarks at Mandela’s memorial, in <a href="https://www.washingtonpost.com/world/obamas-speech-at-mandela-memorial-mandela-taught-us-the-power-of-action-but-also-ideas/2013/12/10/a22c8a92-618c-11e3-bf45-61f69f54fc5f_story.html?utm_term=.b00054bf67fa">December 2013</a>. That’s because much has changed politically in the five years since then. The world is in a much more precarious place.</p>
<p>Authoritative global indices <a href="https://www.bti-project.org/en/data/rankings/governance-index/">portray</a> dangerous trends of <a href="https://freedomhouse.org/article/democracy-crisis-freedom-house-releases-freedom-world-2018">democratic decline</a>. Principles of tolerance, inclusivity and the rule of law, abiding commitments that defined Mandela’s life, are under assault in <a href="https://infographics.economist.com/2018/DemocracyIndex/">other nations</a>, from South Africa the US to Poland.</p>
<p>And, as Rhodes notes:</p>
<blockquote>
<p>There’s an enhanced sense of tribalism in the world. </p>
</blockquote>
<p>It is therefore an auspicious time for Obama to speak about the lessons of Mandela’s life and leadership. The centennial anniversary of Mandela’s birth provides the opportunity for someone of Obama’s standing to encourage awareness about Mandela’s enduring relevance in the <a href="https://infographics.economist.com/2018/DemocracyIndex/">endless struggle</a> to sustain democracies. </p>
<p>Drawing on Mandela’s legacy, Obama can help the world better understand the nature of the threats to all democratic experiments. This includes correcting and preventing corruption and abuses of power. </p>
<p>A new book on <a href="http://www.eisa.org.za/pdf/sym2017papers.pdf">state capture</a>, published by the Johannesburg-based Electoral Institute for Sustainable Democracy in Africa, offers ample evidence of the threats facing countries. It includes country studies of South Africa, Kenya, Zimbabwe and Madagascar, plus chapters on state capture in post-communist European countries and in the US. </p>
<p>The diversity of case studies points to a common danger: The diversion of public funds for private gain. Dictators can do this at will. Those who are elected democratically face obstacles. They must subvert democratic norms and hollow out state institutions, all the while obscuring their real purposes, often exploiting populist fears and resentments. </p>
<p>Mandela, who survived apartheid to create a legitimate constitutional democracy where no one is above the law, with legal rights enshrined for all, embodies the values that are the only reliable protections against the subversion of the democratic project through state capture.</p>
<h2>Democracies under threat</h2>
<p>Justice Albie Sachs, one of the country’s first constitutional court judges, comments in the book’s foreward:</p>
<blockquote>
<p>The South African Constitution not only aimed for perfection. It required us to guard against corruption. We needed to guard against ourselves. </p>
</blockquote>
<p>As a transitioning democracy, South Africa proved vulnerable to “state capture”. But a more potent combination of a free press and independent constitutionally created institutions, including the Office of Public Prosecutor and Independent Electoral Commission, were effectively vindicated by the Constitutional Court. The electoral commissions’s capacity to ensure free and fair elections in which the ruling party might lose ins majority unless corruption can be credibly curtailed may have been the tipping point. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=829&fit=crop&dpr=1 600w, https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=829&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=829&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1041&fit=crop&dpr=1 754w, https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1041&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/226901/original/file-20180710-70069-1dtp8hk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1041&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Nelson Mandela, liberation struggle icon and first president of post-Apartheid South Africa.</span>
<span class="attribution"><span class="source">ILO</span></span>
</figcaption>
</figure>
<p>In Zimbabwe “state capture” became more entrenched and typical of authoritarian electoral states that threaten democratic transitions and consolidation in many post-colonial states. The Zimbabwean Electoral Commission violated electoral law and process with protection provided by the courts and the security sector, which had long ago been corrupted and captured by the ruling oligarchy. </p>
<p>But no democracy is ever secure, even the US. That case study points to historic and current examples of how oligarchs masked as patriots and democrats can exploit the fears and resentments of key constituencies to win elections, disarm democratic protections, and divert public resources to the privileged few. </p>
<p>Co-editors of “State Capture in Africa,” Melanie Meirotti and Grant Masterson, ask if the concept of state capture as it has come to be known in South Africa, the US and post-communist countries, is also useful in the modern African context. They conclude that it is. But sustainable democracy requires constant effort. The book ends with Abraham Lincoln’s timeless advice to Americans:</p>
<blockquote>
<p>You have a democracy, if you can defend it.</p>
</blockquote>
<p>Mandela’s service to South Africa exemplifies the same spirit. And I will be surprised if this idea is not at the core of Obama’s address on Tuesday. </p>
<h2>New generation of leaders</h2>
<p>Obama will use the occasion to motivate a new generation of political leaders. His primary audience will therefore be young people. As his speech writer notes: </p>
<blockquote>
<p>Our unifying theory is that the best way to promote inclusive and democratic societies is by empowering young people in civil society.</p>
</blockquote>
<p>The Obama Foundation will convene 200 young African leaders in Johannesburg during the week prior to Obama’s address to study and debate Mandela’s legacy and <a href="https://www.opportunitiesforafricans.com/obama-foundation-africa-leaders-program-2018-for-young-africans/">leadership attributes</a>. Selected from among 10,000 applicants, they are a vital regional component in the foundation’s broader goal to help develop future leaders among <a href="https://news.uchicago.edu/story/uchicago-obama-foundation-announce-program-emerging-leaders-around-world">Millennials - those aged 24-40</a>. They must be ready to sustain democracies amid growing unrest created by uncontrolled migrations, epidemics, famine, state failures, and climate change. </p>
<p>One attribute of Mandela’s leadership Obama <a href="https://www.washingtonpost.com/world/obamas-speech-at-mandela-memorial-mandela-taught-us-the-power-of-action-but-also-ideas/2013/12/10/a22c8a92-618c-11e3-bf45-61f69f54fc5f_story.html?utm_term=.705e7b49fc53">emphasised</a> in 2013 will deserve repeating to this audience: </p>
<blockquote>
<p>Madiba insisted on sharing with us his doubts and his fears; his miscalculations along with his victories. “I am not a saint,” he said, “unless you think of a saint as a sinner who keeps on trying”. And that’s why we learned so much from him, and why we can learn from him still. For nothing he achieved was inevitable. </p>
</blockquote>
<h2>Recipe for resilience</h2>
<p>Obama emphasised in his 2013 memorial remarks:</p>
<blockquote>
<p>Mandela taught us the power of action, but he also taught us the power of ideas; the importance of reason and arguments; the need to study not only those who you agree with, but also those you don’t agree with… Mandela [also] demonstrated that action and ideas are not enough. No matter how right, they must be chiselled into law and institutions. He was practical, testing his beliefs against the hard surface of <a href="https://www.washingtonpost.com/world/obamas-speech-at-mandela-memorial-mandela-taught-us-the-power-of-action-but-lso-ideas/2013/12/10/a22c8a92-618c-11e3-bf45-61f69f54fc5f_story.html?utm_term=.705e7b49fc53">circumstance and history</a>.</p>
</blockquote>
<p>We can expect Obama to propose practical ways to achieve this and for sustaining our democracies, ensuring that Mandela will inspire democrats of all ages everywhere.</p><img src="https://counter.theconversation.com/content/99529/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John J Stremlau is a on the Board of the Electoral Institute for Sustainable Democracy in Africa (EISA) and authored a chapter in the EISA book cited in this article. </span></em></p>Drawing on Mandela’s legacy, Obama can help the world better understand the nature of threats to democracy.John J Stremlau, Visiting Professor of International Relations, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/968122018-05-18T11:43:11Z2018-05-18T11:43:11ZRepeal the 8th amendment to allow abortion in Ireland – this constitutional experiment has failed<p>The 8th amendment became part of the <a href="https://www.taoiseach.gov.ie/DOT/eng/Historical_Information/The_Constitution/Constitution_of_Ireland_-_Bunreacht_na_h%C3%89ireann.html">Irish Constitution</a> in 1983. It recognises the right to life of “the unborn” and says the state will “defend and vindicate” that right with due regard to the equal right to life of “the mother”. As a result, abortion is legal in Ireland only if the woman’s life is at real and substantial risk; only if she will die without it.</p>
<p>The 8th was intended to prevent abortion in Ireland. It has failed. Around 5,000 women in Ireland have abortions every year, either in England or by importing and using abortion pills (a serious criminal offence). </p>
<p>Instead of stopping abortion, what the 8th actually prevents is doctors intervening to protect the health of their patients if that would jeopardise foetal life. It prevents elected and accountable politicians from making laws to respond to real-life need. It says that as long as a woman is still alive when her child is born the state has done its duty to her and, more importantly, to her child.</p>
<p>A better law is possible: a law that strikes a more workable, and more compassionate balance between two common goods of protecting foetal life and protecting the life and health of pregnant women. But this can only be achieved if Ireland votes to repeal the 8th amendment in the referendum being held on May 25.</p>
<p>Ireland’s government has already said it intends to propose a <a href="https://health.gov.ie/wp-content/uploads/2018/03/General-Scheme-for-Publication.pdf">restricted, highly regulated system</a> for abortion care in Ireland if the people decide to repeal the 8th.</p>
<p>The plan is to allow a woman to access abortion up to 12 weeks into her pregnancy without having to justify her decision. This is not abortion on demand. A woman will not be able to simply walk into a pharmacy and buy abortion pills without a prescription. She will always have to engage with a doctor, who will have to certify that it is less than 12 weeks since the first day of her last period. The woman will also have to take a three-day waiting period.</p>
<p>In that time she will have the legal certainty she needs to focus on making her decision without having to worry about negotiating the practical challenges and isolation of illegality. She can speak with her doctor, partner, family, support network or counsellors to make the decision at hand, knowing that if it is still right for her she can access abortion in three days’ time.</p>
<p>That’s better for women than the 8th amendment. It marks a shift from using the law to compel pregnancy, to using it to support decisions about whether to remain pregnant. It’s also the only practical way to make abortion available to survivors of rape who wish to end their pregnancies and for that reason no “rape clause” is proposed. </p>
<p>“Rape clauses” are extremely problematic. In countries where they exist they require women more or less to prove – sometimes to doctors, sometimes to police officers, sometimes to judges – that they were raped. They re-traumatise women. They sometimes jeopardise criminal trials against an assailant. They rely on women reporting rape, even though we know the vast majority of women are unable or unwilling to do so. Any attempt to make abortion generally illegal but to carve out an exception for rape simply won’t work. </p>
<p>Ireland has had 35 years of a law on abortion that does not work; the government must not introduce another one.</p>
<h2>Tightly regulated</h2>
<p>Under the proposed law, the Irish state will step in and severely restrict abortion after 12 weeks. Despite what posters all over the country suggest, it’s <a href="https://www.thetimes.co.uk/article/simon-harris-six-month-claim-is-a-big-lie-5ktwhp827">categorically untrue</a> that there will be abortion without effective restriction up to six months. Once a foetus is viable it will be a crime to provide abortion; only emergency care, where there is an immediate risk to a woman’s life or immediate serious risk to her health and abortion is immediately necessary will be exempted from that general rule. After 12 weeks, and until viability, abortion will only be lawful where two doctors, one of whom is an obstetrician, certify that there is a risk to life or a serious risk to the health of the pregnant woman.</p>
<p>That is not some so-called vague mental health ground; it is the application of clinical assessment to the health of a pregnant woman. It is allowing doctors to practice medicine: providing the legal environment in which they can support a patient in understanding the risks to her health or life and deciding whether these are risks she is willing to bear. This is completely different to the law in England, which is so often called in aid by those opposed to repealing the 8th amendment, presented as a spectre of an abortion regime to come. </p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/1967/87/contents">1967 Abortion Act </a> allows for abortion in England up to 24 weeks where there is any risk to the health of a pregnant woman (physical or mental), and after that without time limit where there is a serious risk to health, a risk to life, or a diagnosis that means the foetus would be “severely handicapped”. </p>
<p>Ireland’s law would not only have far shorter time limits, more restrictive grounds, and a more rigorous process of medical certification, but it would also categorically not allow for abortion on the grounds of disability. Vitally, it would allow for termination where a woman has received a fatal diagnosis for her foetus – that is, a diagnosis that means it will die before or shortly after birth. </p>
<p>Under the 8th amendment, women in this situation cannot access termination in Ireland; they must either continue their pregnancy until the foetus dies inside them, regardless of the impact of that on their mental and physical health and that of their other children, or they must travel abroad for care. An average of two families every week find themselves in this situation, and their doctors must also bear the emotional and ethical burden of abandoning them to the medical care of another country. </p>
<p>If people feel the 8th amendment does cruelty to women who have survived rape and incest, who are at risk of catastrophic harm to their health, or who have received a fatal diagnosis for their foetus, then the only possible answer is to repeal the 8th amendment. As long as it remains in the constitution, Ireland cannot show compassion for these women. Without it, they can finally be cared for at home, in Ireland.</p><img src="https://counter.theconversation.com/content/96812/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona de Londras has collaborated with Together for Yes and Lawyers for Choice to communicate the legal reasons in favour of repeal of the 8th Amendment. She is the cofounder and coauthor of the referendum-related website <a href="http://www.aboutthe8th.com">www.aboutthe8th.com</a> </span></em></p>The almost total ban on abortion in Ireland does not work to protect women’s health.Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/919532018-02-16T11:40:42Z2018-02-16T11:40:42ZZuma’s removal was a masterstroke: can it be repeated for the economy?<figure><img src="https://images.theconversation.com/files/206742/original/file-20180216-130997-cfen3w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Negotiation was key to convincing Jacob Zuma to step down as South Africa's president.</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>The removal of South African president Jacob Zuma will be remembered for several reasons. One may be the gap between reality and what reporters, commentators and those who shape the national debate say happened.</p>
<p>There have been two South Africas over this period – one created by the echo chamber which dominates the public debate and the other in which millions live. There is no sign that this gap will narrow soon and so what South Africans read and hear will not be what most people experience.</p>
<p>This is a problem for the economy because business decisions which influence people’s ability to meet their needs may be taken on the strength of messages which are believed not because they are true but because they are the only story told.</p>
<p>The echo chamber insisted that a weak and vacillating ANC leadership allowed Zuma, a president widely rejected by citizens (the ANC’s <a href="https://mg.co.za/article/2014-05-11-the-partys-over-anc-sees-decline-in-support">vote share has declined</a> by more than 20% under his watch), to dictate how and when he should go. It did this by trying to negotiate his departure rather than simply telling him to go.</p>
<p>This ignores the constitution and the real world of ANC politics. </p>
<p>On the first score, South Africa is a constitutional democracy, not a one party state. Presidents are chosen and removed by a Parliament elected by the people, not a committee of the governing party. </p>
<p>The ANC can ask a president to go but if the incumbent says no, only Parliament can force them. South Africa’s Parliament begins sitting in the second week of February; until then, the ANC could not remove Zuma. He was gone little more than a week after his removal by Parliament became possible.</p>
<p>If a company did something major which needed doing in little over a week, it would be hailed as a model of efficiency.</p>
<p>On the second, Zuma would not have been removed by the ANC unless those who wanted him out negotiated with him. Negotiation was essential because it was the only way in which to build enough support within the ANC to force him to go.</p>
<p>A point which seems lost on the echo chamber is that the ANC is deeply divided: two factions compete for power. One has supported Zuma avidly, the other wanted him gone. The new leadership was divided almost equally between them – those who wanted Zuma gone may have enjoyed no more than a two-vote majority in the ANC’s national executive committee, which runs it between conferences. A divided organisation which fires a president by a two-vote majority will face years of trouble and so Zuma could not go unless a much bigger majority was built on the national executive committee.</p>
<h2>Factors that made things difficult</h2>
<p>Two factors made this more difficult. Many in the ANC remember President Thabo Mbeki’s <a href="https://www.theguardian.com/world/2008/sep/20/southafrica1">removal in 2008</a> as a traumatic event: it prompted a split and began the ANC’s slide at the polls. Even some who opposed Zuma may have baulked at treating him in the same way as Mbeki. </p>
<p>The ANC also spent decades being harassed by the apartheid government. This produced a tendency to stick together in the face of outside threats and to settle disputes internally. Using Parliament to throw out its own president does not fit well with this. Some national executive committee members who did not support Zuma may not have wanted Parliament to remove him.</p>
<p>So those who wanted Zuma out could not simply pass a resolution and be done with him. They needed a national executive committee majority so big that Zuma would be taking on not a faction but most ANC leaders. They could rely on some support from members who switched sides in the hope of gaining positions after Zuma went. But far more was needed.</p>
<p>Negotiation was the key. It impressed waverers by showing reluctance to repeat the Mbeki trauma. More important, Zuma’s opponents may have realised that he was likely to negotiate in a way that would alienate support. They presumably expected him to put himself before the ANC and the country: the more he did this, the more support would grow in the national executive committee for his removal and the more his options would narrow.</p>
<p>So it proved. Within the ANC, negotiation strengthened the anti-Zuma faction’s claim to care about the organisation. It revealed Zuma as a leader who cared far more for himself than the ANC. By the end, some of his most committed supporters were <a href="http://www.thenewage.co.za/zuma-supporters-urge-him-to-respect-necs-decision/">begging him to go</a>.</p>
<p>There is nothing weak or vacillating about this. The faction which wanted Zuma gone read their options accurately and did what they needed to achieve their goal. They have also achieved changes –- a <a href="https://www.sowetanlive.co.za/news/south-africa/2018-01-10-zuma-appoints-commission-of-inquiry-into-state-capture/">commission of inquiry</a> into state capture, <a href="http://ewn.co.za/2018/01/20/eskom-gets-new-board">a board</a> for the power utility Eskom which is widely agreed to want to run the company, not loot it, and police action against people accused of abusing public money, which few expected to happen this soon.</p>
<h2>Hints of how the country will be governed</h2>
<p>Why is this important for the country and the economy? The politicians who removed Zuma are likely to be running the government for the next five years. Current events were their first test and so they give a hint of how South Africa may be governed. </p>
<p>The echo chamber says they show that government will be weak and incompetent. The evidence tells a different story.</p>
<p>This does not mean that South Africans now know that government will do what needs to be done to restore the economy to health and improve living standards.
Current events do raise a crucial question about the new ANC leadership’s approach to the economy, but it is not the one which exercises the echo chamber. The question is not whether it can work out what is needed and get it done – it has shown that it can. It’s what it thinks is needed and what it is willing to get done.</p>
<p>The new leadership has shown great interest in the insider agenda – tackling the threats to the market economy which worry those who shape the debate. This means restoring the economy to the state it was in before Zuma: ensuring that government and markets operate as the rules say they should.</p>
<p>That is essential. But far more is needed. Unless the new leadership tackles economic exclusion, the problems South Africans associate with Zuma will remain. The key question is whether the new leadership believes that negotiating ways to include millions more in the economic mainstream is worth the same effort as removing Zuma – and whether they are up to this more difficult but more important task.</p><img src="https://counter.theconversation.com/content/91953/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Friedman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The politicians who removed Zuma are likely to be running the government for the next five years. Current events were their first test and offered a hint of how the country may be governed.Steven Friedman, Professor of Political Studies, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/919242018-02-15T12:37:42Z2018-02-15T12:37:42ZZuma era lessons: how democracies can be held hostage by party machinations<figure><img src="https://images.theconversation.com/files/206537/original/file-20180215-131003-41tbrk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jacob Zuma announces his decision to step down.</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p><a href="http://ewn.co.za/2018/02/15/must-read-jacob-zuma-s-resignation-address">Jacob Zuma’s late night announcement</a> that he would step down as president of South Africa followed days of tense negotiations within the governing African National Congress (ANC). The Conversation Africa asked academics what lessons can be learnt, and how the ANC can redeem itself in the post-Zuma era.</p>
<hr>
<p><strong>Is this the biggest political crisis that South Africa has faced since democracy?</strong></p>
<p><em><strong>Vishnu Padayachee, the University of the Witwatersrand:</strong></em> Its equivalent to the recall of President Thabo Mbeki in 2008. For the people of South Africa to have been forced to suffer through this is hard to believe. The crises have lost the country much ground, locally and internationally. </p>
<p><em><strong>Jannie Rossouw, the University of the Witwatersrand:</strong></em> This will surely go down as one of the biggest political crises faced by South Africa in the post apartheid era. The situation became highly slippery as Zuma appeared to be defying calls by his party to resign. International experiences tells us that a stand off like that could easily develop into raging conflict.</p>
<p>Zuma’s expressions during the interview he had with the national broadcaster hours before he finally resigned did not help the situation. In addition to claiming that he did nothing wrong, he seemed to be making veiled threats.</p>
<p><em><strong>Mashupye Maserumule,Tshwane University of Technology:</strong></em> The steps to remove Zuma plunged the country into a political crisis. It exposed the dissonance between political processes of the African National Congress (ANC) as the governing party and those of the state, particularly around the party’s succession battle. </p>
<p>This has been a neglected lacuna, which started to show when Mbeki was recalled. At that time the big question was: what are the implications of the ANC’s concept of “recall” on South Africa’s constitutional democracy? This is because the recall wasn’t congruous with the provisions of the country’s constitution to remove a president. But it was never adequately debated and Zuma’s removal brought back these unresolved issues. </p>
<p><strong>Can the ANC salvage itself?</strong></p>
<p><em><strong>Vishnu Padayachee, the University of the Witwatersrand:</strong></em> For the ANC to salvage itself, a renewal is needed. It has to develop a new culture of inclusive and democratic politics at all levels. To do this, it will have to pay more attention to political education instead of regurgitating the political education of the camps. This is totally inappropriate for the 21st Century. </p>
<p>It must attack corruption with greater vigour and visible energy than it has done in the past. </p>
<p>But it must also attend to the critical tasks of re-igniting growth, creating employment, reducing the income and wealth inequality in addition to prioritising service delivery. For this, the Cyril Ramaphosa-led ANC needs a new progressive macroeconomic policy framework. This must be state led in the first phase to “crowd in” domestic and foreign investment through the opportunities created by rising growth and effective demand. </p>
<p><em><strong>Jannie Rossouw, the University of the Witwatersrand:</strong></em> To salvage itself, the ANC must eradicate corruption and replace corrupt and incompetent cabinet ministers. It must be clear after the replacement of Zuma that the ANC puts the people of South Africa first, rather than the interests of politicians.</p>
<p><em><strong>Mashupye Maserumule, Tshwane University of Technology:</strong></em> Firstly, a governing party in a constitutional democracy needs to have exemplary leadership. </p>
<p>There are several other lessons the ANC must learn for it to emerge from this fiasco. </p>
<p>The first is that its internal political processes have implications on the administration of the state. These should be synchronised with those prescribed in the country’s Constitution. </p>
<p>Secondly, it shouldn’t compromise in its fight against corruption, and should pursue ethical leadership on all levels in the organisation from its branches to its regions, provinces and its national leaders. </p>
<p>Thirdly, the ANC’s integrity commission must start to bite, without fear or favour. It should be well-resourced. In addition, the ANC should invest more in the political education of its cadres.</p>
<p>But lastly, it should also outgrow the nostalgic streak of being a liberation movement and embrace the reality that it is a governing party in a constitutional democracy.</p>
<p><strong>What does this mean for democracy in South Africa?</strong></p>
<p><em><strong>Vishnu Padayachee, the University of the Witwatersrand:</strong></em> South Africa’s hard won democracy has simply become a charade. If democracy is to be strengthened there are several things that have to change: how the President of the republic is elected; how members of parliament are elected and held accountable and how officers of parliament are elected. South Africa also has to find ways of creating new mechanisms for citizen to participate in the democracy between elections. </p>
<p>After 1994 South Africa simply re-positioned itself in the flawed structures of democracy that it inherited. The country should have taken time to re-think its position to ensure a more effective and functioning democracy where the people would come first.</p>
<p><em><strong>Jannie Rossouw, the University of the Witwatersrand:</strong></em> Democracy in South Africa will be stronger. Zuma’s resignation shows that it is possible to remove a corrupt president through constitutional measures.</p>
<p>The problem was that Zuma confused support he had as a result of being in power as personal popularity. This is a mistake many powerful people in politics, government and private business make. It is therefore not surprising that his support in the ANC Parliamentary Caucus slipped quickly once it became clear that his grip on power started slipping.</p>
<p>But the constitutional drama raises questions about the conduct of the ruling party to have kept Zuma in power so long after his corrupt conduct. For this, the ANC owes all South Africans an apology. </p>
<p><em><strong>Mashupye Maserumule, Tshwane University of Technology:</strong></em> The developments show that South Africa’s democracy is vulnerable to manipulation by party political processes. The processes of the leadership succession in the ANC ran roughshod over the supremacy of the Constitution of the country. </p>
<p>But in the end, Zuma was a disaster and the ANC’s decision to ask him to step down was the correct one. Even if Zuma was a good state president who had lost the presidency of his party, he would still have been coerced to resign, as it happened with Thabo Mbeki.</p><img src="https://counter.theconversation.com/content/91924/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vishnu Padayachee was a non-executive director of the South African Reserve Bank from 1996-2007. He received numerous research grants from local and international foundations and Councils but none related to research on the subject of monetary policy and central banking.</span></em></p><p class="fine-print"><em><span>Jannie Rossouw is a NRF C3-rated researcher and receives funding from the NRF.</span></em></p><p class="fine-print"><em><span>Mashupye Herbert Maserumule received funding previously from the National Research Foundation. He is affiliated to the South African Association of Public Administration and Management(SAAPAM). He is the Chief Editor of the Journal of Public Administration.</span></em></p>There are several steps South Africa’s governing party must take to strengthen democracy now that Jacob Zuma has resigned.Vishnu Padayachee, Distinguished Professor and Derek Schrier and Cecily Cameron Chair in Development Economics, School of Economics and Business Sciences, University of the WitwatersrandJannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandMashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/915082018-02-14T16:27:47Z2018-02-14T16:27:47ZSouth Africa’s courts and lawmakers have failed the ideal of cultural diversity<figure><img src="https://images.theconversation.com/files/205706/original/file-20180209-51706-1nbdbl7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Jacob Zuma and Tobeka Madiba, his fifth wife, celebrate their traditional wedding with a dance. </span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>South Africa’s optimistic <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">Constitution</a> makes a brave effort to create a culturally diverse society by granting citizens fairly strong rights to culture, language, and the pursuit of personal family laws based on tradition or religion.</p>
<p>The Constitution does this in the context of also entrenching a strong human rights culture via a wide-ranging <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights#7">Bill of Rights </a> with arguably the most progressive non-discrimination clause in the world.</p>
<p>There are possibly many measures that can be used to gauge if, after some 27 years of democracy, South Africa is on track to achieve a truly multicultural society. I use the fate of customary law (particularly the customary law of marriage) within the country’s legal system as the lens through which to assess success or failure in this nation building project.</p>
<p>Customary law (sometimes termed indigenous law) is recognised by <a href="http://www.justice.gov.za/legislation/constitution/chp12.html">section 211(3)</a> of the Constitution and put on an equal footing with the common law. It was a powerful stab at reconfiguring post-apartheid society along much more equitable cultural lines. The inclusion of this clause was to be read together with other sections in the Bill of Rights which set out complementary rights relating to culture, language, religion, belief and opinion.</p>
<p>Has customary law been integrated into the mainstream of the legal system? And, if so, in what form? The courts of law and the legislature are obviously the key players in this integration process. The courts interpret and apply the law in real-life cases, while the legislature makes new laws or amends and updates old ones.</p>
<p>I <a href="http://www.tandfonline.com/doi/abs/10.1080/02587203.2017.1303900">argue</a> that both the courts and the legislature have failed to make the most of the opportunity provided by the Constitution’s obvious wish to create a truly culturally diverse society – however naive that wish might have been in the first place. </p>
<h2>Doing what’s convenient</h2>
<p>When the going gets tough, both the courts and legislature default to western cultural norms. This is because these norms are convenient – they are readily to hand or, in the context of a modern democracy, less controversial. </p>
<p>In the cultural debate in South Africa, the “elephant in the room” is simply this: the two contending cultures are not equal, and legislating a notional equality will not make them so in real life.</p>
<p>The truth is that western culture is powerful, transportable and globally marketed. Proof is everywhere – in daily value judgements and the language that’s used. In South Africa people still regularly ask: “were they legally married?” when they mean “were they married in church?”. This despite the fact that 2018 marks the twentieth anniversary of the passage of the <a href="https://www.gov.za/sites/www.gov.za/files/a120-98_0.pdf">Recognition of Customary Marriages Act</a>. </p>
<p>I have concerns that in the area of family law in general – and marriage law in particular – it has been a case of one-step-forward-and-two-steps-backwards. For instance, the important issue of requirements for contracting a valid customary marriage has been thrown into total disarray. The courts hand down vastly inconsistent decisions about whether <a href="http://www.saflii.org/za/cases/ZAGPPHC/2009/29.html">lobolo or bogadi)</a>, the <a href="http://learning.ufs.ac.za/RPL224_OFF/Resources/1%20RESOURCES/3.Additional%20material%20and%20court%20cases/7.%20%20MABENA%20v%20LETSOALO%201998%20(2)%20SA%201068%20(T)/MABENA%20v%20LETSOALO%201998%20(2)%20SA%201068%20(T).pdf">participation</a> of the family, a ceremonial <a href="http://www.saflii.org/za/cases/ZAWCHC/2002/11.html">wedding event</a>, or other <a href="https://repository.up.ac.za/bitstream/handle/2263/14528/Bekker_Proof%282009%29.pdf?sequence=1">ritual</a>, are compulsory, optional or irrelevant in the democratic era. It is also unclear whether the consent of the first wife is now a requirement to validate a further <a href="http://www.saflii.org/za/cases/ZACC/2013/14.html">customary marriage by the husband</a>.</p>
<p>The legislature, too, cannot escape criticism. Western influence has crept into the very statute recognising customary marriage. In terms of the <a href="https://www.gov.za/sites/www.gov.za/files/a120-98_0.pdf">Recognition of Customary Marriages Act</a> marriages can be terminated only by a western court of law. (Since this provision is roundly ignored, South Africa sits with the problem of thousands of divorces which occupy the twilight zone of being valid in customary law and “illegal” according to statute. This future time bomb is a discussion for another day). </p>
<p>There is thus still a long way to go before South Africans can be satisfied that the project of integrating African values into the country’s legal system is on track. </p>
<p>Both the courts and the lawmakers appear to have little appetite for trying to preserve deep indigenous values. </p>
<p>This is especially true when the lure of a readily available western norm is too attractive to resist. This sounds like a controversial statement to make, but there is evidence of this. Take, for example, the Constitutional Court decision to <a href="http://www.saflii.org/za/cases/ZACC/2004/17.html">strike down the customary law succession rule</a> of male primogeniture and nominating the <a href="http://www.justice.gov.za/legislation/acts/1987-81.pdf">Intestate Succession Act</a> as the stop-gap measure. </p>
<p>Following this, Parliament was supposed to develop a truly South African solution to succession in a culturally diverse society. Instead it lazily <a href="https://www.gov.za/sites/www.gov.za/files/32147_433.pdf">re-adopted the interim western statute</a> that even the Court had hoped would be interrogated more intensely.</p>
<h2>The way forward</h2>
<p>The approach to law reform and judicial lawmaking that I propose is one in which African values are the starting point. This means accepting that African values exist. This might sound obvious. But a great many people deny that they do, or that they have any relevance in a modern society. These values display a different emphasis from the western world view, and South Africans need to accept that they have a positive contribution to make in creating a new society.</p>
<p>When a customary practice is being assessed for compatibility with the Bill of Rights, I believe it would ground customary law more sustainably in the legal system if the starting point was to understand and honour the African philosophy behind the practice in question. </p>
<p>It is being alive to the distinction between values and practices that I believe holds the key to creating space for a constructive infusion of African values into South Africa’s legal culture. Take an example from family law where the court may have to consider strengthening and preserving a value such as communal kinship solidarity, for instance, against claims based on people now acting more individualistically than in the past. The temptation would be great to default to the common law – the interests of the individual - as being more consonant with the Constitution, but the temptation may have to be resisted if the true kernel of an African worldview is to be preserved. </p>
<p>At the end of the day, creating a truly multicultural society will require hard work, goodwill and an avoidance of easy solutions. As far as I am aware, no other African country with a history of colonialism such as South Africa’s has really solved the problem of unequal cultures.</p>
<p><em>Updated to change “24 years” to “27 years” into democracy</em>.</p><img src="https://counter.theconversation.com/content/91508/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thandabantu Nhlapo does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both South Africa’s courts and its legislature have failed to do their bit in creating a culturally diverse society.Thandabantu Nhlapo, Emeritus Professor of Private Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/914332018-02-08T14:49:10Z2018-02-08T14:49:10ZThe deaths of 144 mentally ill patients and South Africa’s constitutional democracy<figure><img src="https://images.theconversation.com/files/205538/original/file-20180208-180826-1v51vpl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Justice Dikgang Moseneke presided over hearings into the deaths of 144 mentally ill patients who were moved to unregistered NGOs. </span> <span class="attribution"><span class="source">ANA/Nokuthula Mbatha</span></span></figcaption></figure><p>Since colonial times black South Africans have been accustomed to cruelty, neglect and indifference on the part of successive governments. The apartheid government reduced these brutalities to a fine art form, resulting in the system being declared a <a href="https://treaties.un.org/doc/publication/unts/volume%201015/volume-1015-i-14861-english.pdf">crime against humanity</a>.</p>
<p>Regrettably, despite its ideological break from the apartheid past, the post-1994 democratic government has also demonstrated a level of cruelty, neglect and indifference that have been alarming. </p>
<p>There are a litany of examples. The <a href="https://www.theguardian.com/world/2008/nov/26/aids-south-africa">HIV/AIDS denialist position of former President Thabo Mbeki</a> was one. Another was the social welfare debacle in the Eastern Cape two decades ago when sustained service delivery failure due to incompetence and corruption led to <a href="https://issafrica.org/chapter-4-eastern-cape-case-study">great hardship</a> for the poor and the elderly. Then there were <a href="http://www.sahistory.org.za/article/marikana-massacre-16-august-2012">the Marikana deaths</a> when 34 miners were gunned down by police during a wage protest. </p>
<p>More recently <a href="http://ewn.co.za/2018/02/03/gauteng-anc-describes-life-esidimeni-hearings-as-heart-breaking">arbitration hearings</a> into the deaths of 144 mentally ill people have brought to light shocking cruelty, neglect and indifference on the part of government officials. </p>
<p>South Africans watching the hearings, which are being presided over by Justice Dikgang Moseneke, have been perplexed and horrified by the level of depravity. The patients died after being moved from an institution called <a href="https://www.lifehealthcare.co.za/about-us/life-esidimeni/">Life Esidemeni</a> to a number of NGOS, some of which weren’t legally registered. </p>
<p>What does this say about the health of South Africa’s constitutional democracy?</p>
<p>What happened to these patients and the conduct of the officials entrusted to make decisions about their welfare and to care for them is not just a case of the run of the mill negligence claim in common law. It goes to the heart of the country’s constitutional democracy. The <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996-preamble">preamble</a> to South Africa’s Constitution boldly declares that everyone is equally protected by law. It states that the government is committed to improve the quality of life of all citizens.</p>
<h2>Issues ripe for examination</h2>
<p>How can a legal hearing like the Life Esidimeni arbitration fix the systemic issues within South Africa’s mental health care system, and the care of patients? </p>
<p>The answer lies in the decisions taken to bring the people responsible to book. Four options for possible action present themselves – criminal charges, common law claims for compensation, compensation for violation of constitutional rights and personal liability. </p>
<p>Depending on what option is pursued will determine whether or not South Africa sees a repeat of the tragedy.</p>
<p>First to criminal charges: can the political appointees, even those who have resigned, be charged criminally? The answer is yes. The South African Police and the National Prosecuting Authority are currently investigating the matter and criminal charges are likely to ensue. </p>
<p>But this won’t strengthen the constitutional rights of patients in similar situations in the future. To achieve this end, a few other options are available.</p>
<p>One is compensation. As the hearings concluded, Advocate Adila Hassim representing 63 families of the 144 patients said <a href="https://www.dailymaverick.co.za/article/2018-02-08-life-esidimeni-families-to-receive-r200000-as-further-compensation-debated?utm_medium=email&utm_campaign=Afternoon%20Thing%208%20February%202018&utm_content=Afternoon%20Thing%208%20February%202018+CID_f8f2e27b3d8e385b860123a4dae26611&utm_source=TouchBasePro&utm_term=State%20cuts%20a%20deal%20with%20Life%20Esidimeni%20families#.WnxS366WbIU">that an agreement</a> had been reached with the government to pay R200 000 to each family. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/205539/original/file-20180208-180833-b78xuj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Advocate Adila Hassim represented 63 families of the 144 patients who died.</span>
<span class="attribution"><span class="source">ANA\Itumeleng English</span></span>
</figcaption>
</figure>
<p>Those families who choose not to accept the compensation offered may have further claims under the common law of negligence against the wrongdoers as well as the state for grossly negligent conduct and their failure to exercise due care. </p>
<p>But the egregiousness of this situation goes to the heart of the Constitution because it violates several rights. These include the right to life, dignity, safety, security, health, privacy, and not to be subjected to cruel, inhuman or degrading and treatment.</p>
<p>In his consideration of redress and compensation, Justice Moseneke should allow a claim for constitutional compensation or damages, one that stands on its own outside of the common law claims. </p>
<p>Such claims have been allowed elsewhere. For example, in 1996 the <a href="https://law.justia.com/cases/new-york/court-of-appeals/1996/89-n-y-2d-172-0.html">New York state’s highest court</a> held that a free-standing constitutional tort should exist and compensation allowed. Until that point, the court had dismissed the notion that a constitutional tort (separate from a common law tort, like assault or negligence) could exist and authorised compensation only for common law torts committed by State government actors.</p>
<p>In South Africa the Constitutional Court has been reluctant to recognise damages for a constitutional violation. In <a href="http://www.saflii.org/za/cases/ZACC/1997/6.html">a 1996 case</a> the court denied a plaintiff, who had instituted a claim against the Minister of Safety and Security for damages arising from a series of assaults by police, the right to seek constitutional damages. </p>
<p>Another deterrent would be for the Gauteng Department of Health officials who made the decisions that led directly to the deaths of patients to be held personally liable. </p>
<p>The hearings led to consistent denials and obfuscations on the part of Gauteng Department of Health officials, including the former MEC, the Director and other senior officials. Justice Moseneke should reject those assertions. He should impose a meaningful deterrence on those who violated protections provided for under the constitution. </p>
<p>Forcing people to pay personal liability for constitutional damages would provide compelling incentives for enhanced training of officials and staff if there was the potential for monetary damages.</p>
<h2>The road ahead</h2>
<p>The abuse of mental health patients, hidden from view until now, should inspire civic engagement and action by government.</p>
<p>South Africa could look elsewhere for lessons in the care and protection of mental health patients. A detailed report commissioned by the Governor of New York six years ago set out a series of recommendation that South Africa should follow. The <a href="http://www.essexstreet.biz/files/justice4specialneeds.pdf">report’s</a> recommendations included training officials and what steps should be taken in reporting and investigating abuse of patients in mental health facilities.</p><img src="https://counter.theconversation.com/content/91433/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penelope Andrews does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Arbitration hearings into the deaths of mentally ill patients has brought to light shocking cruelty and neglect on the part of South African officials.Penelope Andrews, Dean of Law and Professor, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/826682017-08-22T15:06:28Z2017-08-22T15:06:28ZCentral bank case exposes incompetence of South Africa’s public protector<figure><img src="https://images.theconversation.com/files/182800/original/file-20170821-27163-1krbidt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa has been rocked by a legal battle between the country's Public Protector and Reserve Bank. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>The South African Reserve Bank has won a critical <a href="https://www.timeslive.co.za/politics/2017-08-15-public-protector-should-reflect-on-her-conduct-court-says/">court battle</a>. The Pretoria High Court has set aside a
ruling by the country’s Public Protector that the central bank’s constitutional mandate should be changed. The Conversation Africa’s Sibonelo Radebe asked Jannie Rossouw to consider the implications of the court’s decision, and the events that led up to it.</em></p>
<p><strong>What do you read from this development?</strong></p>
<p>The judgment clearly shows the Public Protector, Busisiwe Mkhwebane, overstepped the mark in commenting on the constitutional mandate of another <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Article 9 institution</a>. South Africa has six independent Article 9 institutions which are designed to shore up constitutional democracy. These include institutions like the SA Reserve Bank, the South African Human Rights Commission, the Auditor-General, the Independent Electoral Commission – and the Public Protector itself.</p>
<p>It makes little sense for one of these institutions to want to influence the constitutional mandate of another. Left unchallenged, the Public Protector’s ruling would have led to an untenable situation. It would have implied that the Public Protector could usurp the role of the Constitutional Court. </p>
<p>This raises questions about the ability of the Public Protector to discharge her responsibilities competently and without fear or favour. The Public Protector’s office is meant to act in the best interests of all South Africans, not particular groups.</p>
<p><strong>Where does this case leave the public protector?</strong></p>
<p>The Public Protector should do the honourable thing and simply resign. She is clearly not fit to hold office and is now a national embarrassment. She is also doing damage to the stature of the office she holds.</p>
<p>Her incompetence raises questions about her ruling over two critical issues.</p>
<p>The first was that the constitutional mandate of the Reserve Bank should be amended, implying that the focus of the central bank should not be on inflation. Not only is this finding outside of the scope of her mandate, but it also shows a complete lack of understanding of the functions and policy limitations of a central bank. These could have been explained to her by any undergraduate economics student. She should have had the insight to understand that this mandate is prescribed by the Constitution.</p>
<p>It’s mind boggling that a person in her position could make such a bad mistake. </p>
<p>She also ruled that the Reserve Bank behaved irregularly in not reclaiming a bailout extended to <a href="https://theconversation.com/pursuing-a-30-year-old-bailout-is-sending-south-africa-on-a-wild-goose-chase-79792">Bankorp</a> in the 1980’s. She ordered Absa which acquired Bankorp to pay back the bailout money. Absa has filed an <a href="https://www.timeslive.co.za/sunday-times/business/2017-06-21-in-full-absa-goes-to-court-over-public-protector-report/">application</a> for this ruling to be set aside. </p>
<p>I’m of the view that she also erred in her Bankorp/Absa findings on a number of grounds. The most important are the time lapse since the assistance, which implies prescription and lapse of any claim in this matter. Moreover the Reserve Bank has assisted numerous banks in South Africa on various occasions without the imposition of the same sanction. It would be questionable justice to impose sanction over the Bankorp matter and not in any other instance where the Reserve Bank came to the rescue of banks.</p>
<p><strong>What are the political implications if any?</strong></p>
<p>The court’s judgement has saved South Africa from a <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">potential constitutional crisis</a> which would have caused further damage to investor confidence. </p>
<p>A number of key institutions like the Auditor General and the Independent Electoral Commission could be rendered vulnerable if the Public Protector were given free reign. These institutions are supposed to protect public interest but have come under attack in this era of <a href="https://theconversation.com/why-patronage-and-state-capture-spell-trouble-for-south-africa-64704">state capture</a>.</p>
<p>A number of public institutions, government departments and State owned enterprises, have been captured by forces acting in the narrow interest of politicians and their friends. This has placed the country in jeopardy. </p>
<p>Recent developments around the country’s treasury is a perfect example of how far the agents of state capture are prepared to go. South Africans watched with horror how the state capture agents bulldozed their way into the National Treasury. When the previous finance minister Pravin Gordhan stood against attempts to raid the public purse, he had to be <a href="https://theconversation.com/firing-of-south-africas-finance-minister-puts-the-public-purse-in-zumas-hands-75525">fired</a> and the conduct of his successor in the face of state capture is still subject to scrutiny.</p>
<p><strong>What are the economic implications if any?</strong></p>
<p>The South African Reserve Bank is one of few public institutions in South Africa <a href="https://theconversation.com/its-hard-to-get-rid-of-the-governor-of-a-central-bank-heres-why-64836">not tainted</a> by the Gupta-leaks. It therefore symbolises stability and confidence in the South African economy.</p>
<p>It means that the Bank will continue to discharge its constitutional responsibility and its independence is still safeguarded. Its independence serves to protect it from the whims of politicians.</p>
<p>It therefore implies that the bank will continue to focus on containing inflation as a consequence of its unchanged constitutional <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">mandate</a> which is to protect the value of the currency in the interest of balanced and sustainable economic growth.</p>
<p>This ruling will help to maintain some confidence in the South African economy, and will go some way towards restoring the slipping sovereign credit rating.</p>
<p>However, much more needs to be done before South Africa will once again have investment grade credit ratings from all major ratings agencies. For one thing, there must be greater policy certainty.</p><img src="https://counter.theconversation.com/content/82668/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jannie Rossouw previously worked for the SA Reserve Bank and holds shares in the SA Reserve Bank. He receives funding from the NRF as a C-rated researcher.</span></em></p>South Africa’s Public Protector, has been exposed as incompetent after trying to meddle with the constitutional mandate of the country’s central bank.Jannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.