Let's Think

Foundation of South African constitution in mortal danger

Let's Think

We saw the onslaught coming for some time and now forces of anarchy are set to be let loose on one of the cornerstones of the South African constitution, an independent judiciary.

If protesters are mobilised to take to the streets in an attack on the judges of the country, to whom the constitution supposedly guarantees independence, anarchy is the only term that can be applied.

It amounts to nothing less than a full-on attack on the constitution and its principle of the separation of powers.

It has been coming for some time and as far back as August 2013, in an article headed “Separation of powers goes to court”, we showed how President Jacob Zuma, members of the government and ANC leaders have consistently complained that the judiciary, to their minds, was overstepping their bounds.

Only a month later it was announced that the Executive was seeking to review the courts. At the time the Helen Suzman Foundation warned that the country might have begun to “move away from the rule of law towards the rule of power”.

At that stage it was also noticeable that the secretary general of the ANC, Gwede Mantashe, had become one of the most vocal critics, accusing the judiciary of interference in the government’s affairs.

The latest and most direct attack on the judiciary comes from the ANC’s governing alliance partner, the South African Communist Party (SACP). The party announced it would embark on what it calls “mass protests” against the country’s judges. It accused the judges of “bias” and “partiality”, claiming the judiciary is the least transformed of the three spheres of state.

The fact is that the position of the SACP itself in government represents a perversion of democratic principles. Never having fought an election itself and despite its membership (by its own figures) representing only 1.2% of voters in the country, it occupies 40% of all positions in the Executive.

And that is not where it ends. Its functionaries are deployed in key positions inside the ANC structures and throughout the civil service. The ANC’s Youth League in KwaZulu-Natal, which has announced its own supporting protests against the judges, is heavily stocked with Young Communist League/SACP members.

The ANCYL’s national coordinator, leading its interim structure, Magasela Mzobe, also hails from KZN, where he has long moved in the same circles as Blade Nzimande, the SACP secretary general.

Mzobe, a self-confessed admirer of Robert Mugabe, is hoping to become ANCYL leader at the league’s upcoming elective conference.

It is also important to take note that Mantashe himself is an influential senior member of the SACP.

It is ironical at best that on the same day that the SACP announced its renewed onslaught on the judges, President Zuma, at the celebrations of the 60th anniversary of the Freedom Charter, said the “separation of powers remains a critical doctrine, promoting cooperation between the Executive, parliament and the judiciary, which constitute the new democratic state”.

Since then, there has been no word from him or any other senior member of government to repudiate the SACP plans.

We think

We think much more than just the independence of the judiciary or the principle of the separation of powers is at stake here.

In its own statement to celebrate the Freedom Charter, the SACP stated: “Now this is the time to place the transformation and development of our country on to a second, more radical phase of our democratic transition!”

The SACP is also on record that it is seeking to further its National Democratic Revolution (NDR) and rewrite the Constitution, which it rejects as a compromised settlement between the ANC and the last apartheid government.

The judiciary is a key obstacle and therefore needs to be emasculated. Its major victory to date was the replacement of the ‘neo-liberal’ government of Thabo Mbeki with that of Zuma.

Against this background, speculation in some informed circles that Mantashe would be the candidate the SACP would support for the position of the next ANC president, and of the country, as they did with Zuma, should not be taken lightly.

If they succeed, as they did with Zuma, the SACP’s “Trojan Horse” operation would be complete and the constitution negotiated in the 1990s will be history soon afterwards.

by Piet Coetzer

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