Sometimes “law fare” is needed to protect democracy

The warning by Judge Dennis Davis against the “politicisation” of the courts — issued in his judgment about the refusal of Parliament to debate a vote of no confidence in President Jacob Zuma – is both timely and well worth heeding. However, there is a danger that politicians who wish to close down the democratic space, will exploit (or deliberately misinterpret) this insight. It is therefore important to clarify what Judge Davis meant. Unfortunately Steven Friedman, in a recent column, appeared to have done the opposite.

In his judgment, Davis emphasised that in a constitutional democracy courts do not and should not run the country. Davis confirmed the principle that courts exist to police the constitutional boundaries and have a clear role to enforce the Constitution without fear or favour where the constitutional boundaries are breached. But he continued by warning:

There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to  policy, or disputes which clearly carry polycentric consequences beyond the  scope of adjudication.

Steven Friedman applauded these comments, and bemoaned the fact that politicians and “well-heeled interest groups and individuals” seem to feel that any political decision they dislike should be settled by the courts. Friedman argued that there is a danger in groups seeking to win in courts what has been lost in democratic politics.

When courts are asked to overturn government appointments that minority parties dislike, there is a danger that the idea of rights will become discredited because they will be seen as a means of allowing minorities to dictate to the majority. Friedman distinguishes between going to court to enforce rights, on the one hand, and going to court to challenge politically unpalatable decisions, on the other, arguing that the former is important while the latter is problematic.

To object to this trend is not to argue for a simple majority principle in which those who are elected can do as they please. It is, rather, to insist that the core principle of constitutional democracy — that we all have rights no majority can violate — is far too important to be turned into an instrument to change government decisions that don’t infringe on anyone’s rights.

Those who use courts to fight political battles rather than to defend basic rights, signal that they see the constitution as a means to thwart democracy rather than to defend it, as a means to overturn majority decisions rather than to defend the rights of majority and minority alike. The lawyers and jurists who defend this, signal that they do not see constitutions and courts which enforce them as a means to allow everyone a say, but as instruments to ensure that, as far as possible, only lawyers and judges have a say.

I agree with both Davis and Friedman that it is problematic that many South Africans see courts as a first rather than a last resort. Instead of doing the hard work of mobilising public opinion in support of a position, some people rush to the courts at the drop of a hat in the hope that the court will overturn a decision that they do not like. This places strain on the judiciary, who runs the risk of being politicised.

Judges are unelected and are often attacked or criticised when they rule against the government. (This happens in any democracy, and is far from unique to South Africa.) Judges cannot normally defend themselves against such attacks and their credibility and legitimacy can easily be eroded by these self-serving attacks by politicians and their supporters. A hasty resort to the courts also diminishes democratic contestation because those who rush to the courts in this manner do not feel the need to make their case to the voters who voted for the party in government, the very government who has made the decision being attacked.

But I disagree with Friedman when he argues that we should only approach courts when our rights are being infringed. In a one party dominant democracy, in which one political party enjoys overwhelming support from those voters who care to vote, the governing party will almost always be tempted to undermine the independent institutions (like the National Prosecuting Authority, the Chapter 9 institutions and the judiciary) in an attempt to consolidate its power and shield it from accountability. It will also be tempted to ignore the laws of the land and the specific injunctions in the Constitution in order to make it more difficult for ordinary citizens freely to exercise their democratic rights.

In a constitutional democracy, a Constitution is not only important because it guarantees and protects the human rights of everyone. The Constitution is also important because it sets out the rules of political engagement and limits the powers of the executive and the legislature, both procedurally and substantively, in order to ensure a level political playing field. Where a majority party flouts the provisions of the Constitution and sets out to ignore or actively to undermine the checks and balances contained in the Constitution, this poses a grave danger to democracy. These checks and balances limit the ability of transient majorities to abuse their power and to exploit their majority position to close down democratic space. But it is not unheard of that the law and the Constitution will be flouted to shield the majority party and its leaders from accountability and from possible criminal prosecution.

When this is done and where the courts do not intervene, democratic accountability itself disappears and the political playing field is tilted in favour of those in power, making it far more difficult for minority parties to engage fairly in political contestation and further entrenching the position of the majority party.

So, when the Constitution establishes an independent National Prosecuting Authority (NPA) and where legislation duly passed by a democratic legislature requires the head of the NPA to be a fit and proper person with the necessary integrity to ensure this independence is respected, what is to be done if the President appoints a person as head of the NPA in order to protect him and his cronies from prosecution? What happens if the appointee does not comply with the minimum criteria set out in the legislation? Surely, a court is then required to enforce the Constitution and the law and to declare such an appointment invalid.

Yes, such decisions will put strain on the courts, but this strain is caused by the decisions of the President aimed at entrenching his power and skirting accountability — not by those who approach the court to enforce the Constitution and the law. In such cases the courts are between a rock and a hard place. If they do not act, they acquiesce in the subversion of the law and eventually our democracy. If they do act, they will be accused of making “political” decisions.

Courts can be shielded, to some extent at least, from the fall-out that will result from their willingness to protect the democratic space. This can be done if those fighting to preserve the democratic space and to counter the potential abuse of power by politicians serving long stints in government, use the courts strategically. As the Treatment Action Campaign (TAC) demonstrated, one can use litigation to help mobilise public support for an important cause through campaigns, petitions and marches.

If one is successful in mobilising public support, one shields the court from the fall-out of the eventual court judgment. By the time the Constitutional Court ruled in favour of the TAC, Thabo Mbeki had lost the argument about HIV inside his party and his government had already announced that it would change its HIV prevention and treatment strategy. If the TAC had only rushed to the courts and had not used the litigation process to gain wider support for its position, it would have been politically far more difficult for the Constitutional Court to declare the government’s HIV policy unconstitutional.

Judges on their own cannot preserve the democratic space if lazy or passive citizens are not able and willing to get their hands dirty, to organise, to mobilise, to advance their interests. Courts are just one of many mechanism at our disposal in a constitutional democracy to prevent the abuse of power and to protect the democratic space itself. When we solely rely on the courts, we expose the judiciary to political pressures that they might not be able to withstand.

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