A pandemic of authoritarian legalism has broken out in recent years. Hungary, Poland, India and Brazil are clear examples of how legalistic autocrats exploit their democratically elected positions to develop a narrative that equates the majority vote to an official mandate to act on behalf of the citizens of the country.
Independent courts are co-opted to install “party-friendly” judges who are ready to approve laws that defer to the government and reject those that do not pass the government’s ideological muster.
Increasingly, law is employed by these autocrats to consolidate their regimes while seeking to maintain a form of legitimacy that masks their behaviour under the pretence of law-abiding democracy.
Numerous studies have shown that the growth of autocratic rule under a form of autocratic legalism is difficult to discern initially because it often takes the form of an incremental process as autocrats slowly consolidate their power under the umbrella of law.
South Africa may not have reached a position of autocratic legalism, yet. There are still those in the ruling party who regard constitutional democracy as central to the future of the country.
Held to account
More importantly, there are non-government organisations and sections of the media that hold power to constitutional account. The judiciary itself has held the legal line during the storm of State Capture. Thus there is some substance in the claim that South Africa remains a constitutional democracy, albeit an imperfect example of the model.
Moving menacingly and increasingly into the centre of the stage, however, are legal autocrats who employ the law to subvert the very constitutional enterprise, which they exploit for their own populist purposes.
The loudest and most consistent example is Lindiwe Sisulu who, for example, has said:
“Today in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the world view and mindset of those who have dispossessed their ancestors. They are only too happy to lick the spittle of those who falsely claim superiority. The lack of confidence that permeates their rulings against their own speaks very loudly while others securing their agenda clap behind closed doors.”
More recently, in reaction to the decision of the Constitutional Court to release Janusz Waluś on parole, the EFF suggested that the Constitutional Court’s decision shows that it did not care about stability and peace in South Africa.
Similarly, SACP’s Solly Mapaila called the judgment an injustice that has “occurred today through justice”.
Read more in Daily Maverick: “Outcry over ConCourt order to parole Chris Hani’s killer”
A careful read of the judgment of Chief Justice Raymond Zondo in the Waluś case reveals the decision turned exclusively on whether the Minister of Justice’s decision complies with the relevant law. In paragraph 82 of the judgment, Zondo CJ says:
“Therefore this Court must vitiate the Minister’s decision if it were not to do so, it would in effect be giving its approval to the proposition that in the future it would be appropriate for the Minister to deny the applicant parole even when he had served 30 or 35 or even 40 years of imprisonment. That is simply on the basis of the nature of the crime, the seriousness of thereof and the trial court and the Supreme Court of Appeal sentencing remarks despite the fact that the applicant complied with all of the other requirements for him to be placed on parole which the Minister concedes. The Minister’s decision is not rationally connected to the purpose of the power conferred upon him. His decision is therefore irrational and falls to be reviewed and set aside.”
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The Chief Justice was expressly mindful that the horrendous crime perpetrated by Waluś almost derailed democracy but noted that the drafters of the Constitution did not draft a constitution to protect only the rights of those who fought for democracy. A constitution by its nature protects all — those who won democracy as well as those who fought to preserve apartheid.
In summary, the court was manifestly aware of the horrendous crime committed by Waluś in murdering a great South African leader, Chris Hani. But the decision to review a refusal to grant Waluś parole had to be based on whether the minister had acted rationally.
He had not, notwithstanding the consequence of this decision and the excruciating pain it has caused the Hani family, the rule of law had to be vindicated.
But as indicated in the introduction, populists are less interested in a result that affirms the rule of law and far more in whether the result accords with their political view of the world.
Mrs Hani is more than entitled to be furious at the outcome, but the ruling party should be more reflective of the implications of living under the rule of law.
Moving beyond the Waluś decision, even more disconcerting is the manner in which certain elements of the legal profession confront constitutional democracy.
Populist exploitation
It is undoubtedly a fair observation that there are significant segments of the legal profession who consider Judge President John Hlophe and advocate Dali Mpofu SC to exemplify the role that judges and lawyers should play in South Africa.
Hlophe increasingly sounds like a jurisprudential version of Che Guevara, such as in his recent replication of the discourse of all the land being stolen. He claims that the government has not done much in the past and thus it must be the parents who will have to equip their children with the knowledge of how to get the land back from thieves.
Although the question of land restitution is a critical issue to be resolved in South Africa, the naked populist exploitation thereof by a judge who is facing impeachment should not be forgotten.
As a number of commentators have pointed out, the speech elides over the decade of State Capture, which resulted in the theft of public funds that could have made a major contribution to the reconstruction of the lives of millions of South Africans.
Immune from criticism
As is now common cause to all who appreciate facts, Hlophe ordered the eviction of 20,000 Western Cape squatters in 2008 and made no provision as to where they should be housed.
The roars of applause that greeted the Judge President’s speech by members of the legal profession seemed unconcerned by a message of a judge who, less than 15 years earlier, not only seemed unconcerned about the consequences of land reform but was so cavalier in his regard for the lives of the poorest of the poor.
It is very disturbing that an influential section of the legal profession appears to do the same.
Similarly, Mpofu appears to be immune from any criticism, as is evident by the manner in which his recent conduct was exonerated by the Legal Practice Council.
It is also disturbing how judicially imposed time limits do not apply to Mpofu, making it appear that courts’ judges are intimidated when he appears. Like it or not, he is a dominant legal figure, often raising arguments that really constitute legal warfare against the spirit of constitutional democracy.
Danger ahead
South Africa is therefore confronted with significant attacks on the idea of constitutional democracy, the idea of a fiercely independent judiciary that judges cases in terms of law as opposed to a particular political consequence.
In this dangerous period, the fact that a significant group in the legal profession view the judicial Hercules as being those who use the law to undermine fundamental principles of accountability and integrity of public power or to voice the discourse that can only promote the growth of autocratic legalism should be of concern to all.
Within this context of society, it is not surprising that the judiciary finds itself under increasing pressure. We now read that the judiciary has become a threat to our democracy.
The judiciary has even more violent storms to negotiate. It will require judges who only defer to the law and not populist sentiment.
That leads to the Judicial Service Commission. Although the composition of the JSC has been strengthened by a number of excellent recent appointments, the overall impression remains that judges who courageously have asserted the integrity of the Constitution and hence their intellectual independence, all too often have been subjected to mistreatment at JSC hearings.
Wake-up call
It is a warning that, if a judge wishes to be promoted, it is better to pursue a quiet life than to develop a progressive jurisprudence in which the rule of law, and the foundational values of the Constitution are asserted without fear or favour.
We are truly in trouble and it should be a wake-up call to civil society in general and the balance of the legal profession, to defend our model of constitutional democracy which, however imperfect, still represents the best hope that South Africa can develop into a society in which substantive equality, dignity and freedom can be enjoyed by all its citizens.
The fortitude shown by millions in resisting State Capture is now needed again. Is it too much to expect the core of the legal profession to defend the very basis of law, no matter the threats of the populists? Failure to do so can only mean that South Africa joins Hungary, Poland and India as a failed constitutional experiment. DM
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