President Zuma and the separation of powers

The remarks made on Friday by President Jacob Zuma  in front of an audience of judges at the Access to Justice conference in Johannesburg, has elicited much comment. Given the manner in which President Zuma became President after corruption charges were inexplicably dropped against him, his appointment of the tainted Menzi Simelane as National Director of Public Prosecutions and the utterances by some of his supporters about so called “counter-revolutionary judges” – made in the period when Zuma was being pursued on corruption charges – it is perhaps understandable that not everyone would trust President Zuma’s bona fides on the issue of an independent judiciary and the supremacy of the Constitution.

However, it is important to keep a clear head and not to overreact to what the President has said. In South Africa we have a tendency to interpret statements according to the preconceived template constructed by our fears, suspicions and prejudices – and often do not properly hear and understand what a political opponent might have said. At the same time this is a pivotal issue for our democracy and it is therefore important to look at the words of the President carefully to see whether it makes sense and whether it can be squared with our system of separation of powers and constitutional supremacy.

President Zuma – quite correctly, in my view – stated that one must distinguish the areas of responsibility between the judiciary and the elected branches of government. Although our courts have often said that there is no bright line boundary between the three branches of government and that it is not always easy to distinguish between the work done by the three branches, it has always maintained that some aspects of decision making is more appropriately left to the non-judicial branches of government. There is therefore no disagreement between the judiciary and the President on this point.

President Zuma then continued:

The Executive, as elected officials, has the sole discretion to decide policies for Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.

Although this statement is not a model of clarity and can be interpreted as meaning that judges cannot issue orders that would affect the ability of government to make the policies it sees fit, I take it to mean that the executive – rather than the judiciary – is the appropriate branch to formulate policy which can then be tested by the courts for constitutional compliance. If one assumes that the President accepts that government policies can be declared unconstitutional and that Courts can tell the executive that some policy choices are constitutionally invalid, then this view seems correct.

Courts cannot formulate policy, but of course, judicial decisions will often affect the policy choices a government is required to make. The decision in the Cape High Court in the Makhaza toilet’s saga is a case in point. As the court had found that providing open toilets to residents of Makhaza infringed on their rights, this radically circumscribed the policy choices on sanitation open to the City of Cape Town. As our Constitution empowers courts to make orders that will vindicate the rights of ordinary citizens, in principle there is nothing wrong with this course of action,

This was made clear in the Treatment Action Campaign case where the government’s lawyers – perhaps under pressure from the tea-guzzling, garlic and beetroot-eating, Minister of Health – argued that even where a court finds that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court’s judgment.

This, so the argument went, is what the doctrine of separation of powers demands. Government lawyers contended that under the separation of powers doctrine the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy.

In the TAC case the Constitutional Court rejected the argument that it could not make orders that would have policy implications for the government. The Court stated as follows:

This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.

Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so.

Especially in social and economic rights cases courts will be required to evaluate state policy and to give judgment on whether or not it is consistent with the Constitution. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant “appropriate relief” that are – in the wording of section 172(1)(a) – “just and equitable”. As the Court stated in the TAC case:

We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.

The President’s argument about policy formulation being left to the executive may therefore be seen as a bit naive and simplistic as it may be read as assuming that court judgments must never impact on government policy formulation. In a constitutional state that would be impossible. However, one could also interpret the passage generously, in which case the President can be assumed to have said nothing more than that the executive will always have the final say on what policy to formulate and implement – as long as the policy complies with the Constitution as interpreted by the judiciary.

What was perhaps more worrying is that the speech may be read as indicating that President Zuma resents the fact that all executive action is subject to the discipline of the Constitution and that in a constitutional democracy with a supreme Constitution the executive is not free to act as it sees fit and to adopt the policies of its choice as it sees fit and implement those policies as it sees fit. He also seems to suggest that when political opponents raise constitutional issues to score political points and/or approach a court to vindicate the constitutional rights of ordinary citizens or to uphold the Rule of Law and the Constitution, a court should not entertain such questions. This is clearly wrong.

President Zuma stated that the executive “must be allowed to conduct its administration and policy making work as freely as it possibly can” and then continued:

The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections. Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.

The problem with this statement is that it – wrongly – assumes that one can always make a distinction between “political disputes” on the one hand and constitutional questions on the other. Often, opposition parties or civil society groups will challenge the constitutionality of a legal provision or of action by the executive or an organ of state and they have every right to do so. Often such challenges will deal with issues that are highly political but that may also raise constitutional questions. The mere fact that unconstitutional action by the executive is criticised by opposition parties who – as is their right – might exploit this alleged unconstitutional action for political gain in order to show up the government of the day, does not preclude any court from declaring such action unconstitutional.

Political disputes and constitutional disputes often overlap: Is the provision on which the President relied to extend the term of office of the Chief Justice constitutionally valid? Did the Judicial Service Commission act lawfully when it decided not to investigate the complaint agianst Judge President John Hlophe? Is a municipality entitled to evict poor people from buildings in the inner city of Johannesbsurg as part of a programme of gentrification? Can the President fire the head of the intelligence service? Can Parliament pass a law to force “coloured” workers to move to provinces where they are not in “oversupply”. Is the policy on forcibly installing pre-paid electricity meters in poor, black, areas of Johannesburg constitutionally valid? All these questions are BOTH political (in the sense that it deals with governance issues) AND constitutional in nature.

Our courts have a right and a duty to declare action or inaction by the government or organs of state unconstitutional if it does not comply with the Constitution. It is irrelevant whether the case happens to have been brought to the court by a political party or whether the issue raised before the court is politically charged. What a court has to do is to declare invalid unconstitutional behaviour – no matter whether that unconstitutional behaviour had been endorsed by 2400 delegates at an ANC conference at Polokwane, or by 12 million voters during a general election. This is what it means to live in a constitutional democracy. The sooner everyone gets used to this, the better.

Where a court declares the actions or failure to act on the part of the executive to be unconstitutional, the court is not helping opposition parties or civil society to co-govern the country. The court is merely upholding the Constitution. The executive can prevent political opponents from politically embarrassing the governing party and the executive, by making sure that its actions always comply with what is required by the Constitution. Of course, for that to happen the executive would need good legal advice, which I fear, is often not provided. But maybe that is an issue for another day.

Courts have a pivotal role to play in upholding the Constitution. When they do this, they help to protect everyone – including the poor, marginalised and vulnerable – from abuse of power by venal, tardy, overwhelmed or heartless government officials. They also help to hold the executive to account and to protect our democracy in the name of the people. Just like the other two branches of government, a properly functioning judiciary must therefore also be seen as representing the interests of the people and when one talks about the separation of powers one should be careful not to suggest that the judiciary has less legitimacy merely because its judges were not directly elected by about 35% of the citizens who bothered to vote for the majority party at the last election.

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