The wider significance of the judgment of the constitutional court on the "Nkandla matter"

On 31 March, 2016, Chief Justice Mogoeng Mogoeng conveyed the unanimous decision of the Constitutional Court (ConCourt) in the matter of “Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others ZACC 11.”

This decision has evoked much understandable and inevitable political discussion and activity in our country, which has included calls for the immediate removal of the President of the Republic.

However what must also preoccupy the Nation, including and especially the Political Parties, is the wider and deeper significance of the ConCourt decision.

That wider and deeper significance derives from the fact that in its consideration of the “Nkandla matter”, the ConCourt made an outstanding contribution to the clarification of the issue – what do we mean when we say that ours is a Constitutional Democracy?

Again arising from the foregoing, it would seem obvious that given the delicate role that the Judiciary must play within the context of the Separation of powers in a Constitutional Democracy, it would be important that:

• the processes to select and appoint Members of the Judiciary should be such that they give the best possible guarantee that those selected are properly qualified truly to understand the meaning and application of the Separation of Powers and the role and place of the Judiciary in this regard, in the context of the reality that ours is a Constitutional Democracy;

• the leadership of the Judiciary, especially the Chief Justice, should undertake the processes that Members of the Judiciary are properly schooled with regard to the immediate foregoing; and,

• this leadership, especially the Chief Justice, should engage the Members of the Judiciary in educational processes to ensure that these Members understand the national circumstances which gave birth to, as well as those under which our Constitutional Democracy must function.

Of course the ConCourt also commented on the matter of the Public Protector and said, among others:

“The institution of the Public Protector is pivotal to the facilitation of good governance in our constitutional dispensation…

“The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.

“The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector...The Public Protector is one of the true crusaders and champions of anti˗corruption and clean governance…

“The purpose of the office of the Public Protector is therefore to help uproot prejudice, impropriety, abuse of power and corruption in State affairs, (in) all spheres of government and State-controlled institutions. The Public Protector is a critical and indeed indispensable factor in the facilitation of good governance and keeping our constitutional democracy strong and vibrant…

“As with other Chapter Nine institutions, the Constitution guarantees the independence, impartiality, dignity and effectiveness of this institution as indispensable requirements for the proper execution of its mandate. The obligation to keep alive these essential requirements for functionality and the necessary impact is placed on organs of State. And the Public Protector is one of those deserving of this constitutionally-imposed assistance and protection…

“If compliance with remedial action taken were optional, then very few culprits, if any at all, would allow it to have any effect…

“The power to take remedial action is primarily sourced from the supreme law itself. And the powers and functions conferred on the Public Protector by the Act owe their very existence or significance to the Constitution. Just as roots do not owe their life to branches, so are the powers provided by national legislation incapable of eviscerating their constitutional forebears into operational obscurity…

“Our constitutional order hinges also on the rule of law. No decision grounded on the Constitution or law, (such as remedial action prescribed by the Public Protector), may be disregarded without recourse to a court of law. To do otherwise would “amount to a licence to self-help”.

Given its Constitutional mandate and powers, it would seem obvious that:

• the Public Protector should, at all times, be given sufficient resources to carry out her/his important work;

• it should further be popularised among the people as a whole to encourage these to access it as need may arise; and,

• the (State) National Executive should take all necessary action to familiarise the Executive authorities and State Organs in all the Spheres of Government both with the powers of the Public Protector and their responsibilities to support her/him in the discharge of her/his duties.

It is critically important that all of us should understand that the ConCourt Judgement on the “Nkandla matter” has raised many vitally important issues about the functioning of our Constitutional Democracy on which all those concerned should act.

In this regard these should keep in sharp focus that the solemn decision to establish this Constitutional Democracy was born out of the immense sacrifices that were made by countless numbers of our people, up to and including the sacrifice of many lives, as well as the millions in the rest of Africa and across the globe who joined us in struggle to end the system of apartheid and help ensure the birth of our Democracy.

That decision to establish a Constitutional Democracy sought to entrench an outcome which would help to ensure that the need should never arise again for future generations to have to make similar sacrifices.

Among others the decision to establish a Constitutional Democracy means that we wanted to ensure that Executive Power is not abused to undermine the Constitutional and Statutory rights of the people and to weaken the capacity of the State Organs to discharge their Constitutional obligations to the Nation and the country.

It also means that Members of all Political Parties elected to Parliament should understand that they share a collective responsibility to act in concert to discharge the responsibilities imposed by the Constitution, at all times to honour their public declarations of submission to the Constitution and all laws, and to respect their primary obligation to serve as true peoples’ tribunes, which makes them accountable, first and foremost, to our people as a whole whom they are elected to represent.

The decision to establish a Constitutional Democracy also means that all Members of the Judiciary, others in the Criminal Justice System, as well as all those who serve in other State Organs should not allow themselves to be “owned” by any Political Party and/or any other interest, remaining loyal to the fundamental proposition advanced recently by the Chief Justice when he said – “My soul is not for sale.”

It also means that all Chapter Nine institutions, regardless of who heads them, should do everything possible, acting without fear or favour, strenuously to discharge their Constitutional and Statutory responsibilities.

The decision to establish a Constitutional Democracy also means that all Political Parties which function within this Democracy, whether in the Executive and/or the Legislature, have a primary obligation to help develop and entrench this Constitutional Democracy, at all times respecting and popularising the understanding that they, like everybody else, are obliged to operate within and under the imperative that the Constitution is the supreme law of the Republic which dictates the nature and functioning of our System of Governance. In this regard they would be acting to honour their legal, political and ethical commitments attendant to the acceptance of a Constitutional Democracy.

That strategic decision to establish a Constitutional Democracy also imposes the obligation on the masses of our people, and all their organisations, continuously to act as the guardians of our Constitutional Democracy, at all times determined to defend it as the product of their sacrifices and their guarantee that the people shall govern!

We owe it to our Constitutional Court to salute the Chief Justice and his fellow Judges for the meticulous manner in which they discharged their Constitutional responsibilities as our Apex Court, clearly to identify the national imperatives binding on everybody with regard to the strategic task to ensure the vibrant functioning of our Constitutional Democracy!