Constitution to be drastically amended, partially suspended
I guess we could have seen this coming as early as 2007 when the race for the ANC’s leadership ahead of the 2009 elections began to heat up. Although, to be fair, I don’t think we could have expected what was to transpire in the years leading up to that historic election and what has followed in the months since then.
President Mbeki’s dismissal of the former National Director of Public Prosecutions on the basis of an incompatibility with the Justice Minister challenged the Constitutionally guaranteed independence of the National Prosecution Authority and paved the way for further challenges to other seemingly independent bodies starting with a renewed attack on ICASA by the then Communications Minister. The only real opposition at the time, the Democratic Alliance, challenged the President and his Cabinet both in Parliament and in court. The process took longer than was expected and, in that time, several members of the Constitutional Court were retired and replaced by judges who were also firm supporters of the President’s agenda. By the time the Democratic Alliance’s challenge reached the Constitutional Court, the decision was all but handed down. Chief Justice Hlope led the majority of the court in a finding that recognised the President’s ability to effectively undermine the independence of the those previously protected institutions. The decision was controversial to say the least but there was no further scope to challenge it further at that point, certainly not using the court system.
Pikoli’s removal as National Director of Public Prosecutions paved the way for his successor who charged ahead with the much anticipated prosecution of former deputy President Jacob Zuma. Bouyed by their successes against Zuma’s former patron, Shabir Schaik, the prosecution team secured an overwhelming victory against Zuma who was sentenced to 15 years in jail for fraud. His appeals were all denied fairly early on and with Zuma out of the way, his supporters in the ANC, the ANC Youth League and elsewhere fell into line behind President Mbeki (who was rumoured to have had a few stern words with Zuma’s principal supporters). The ANC went into the 2009 elections stronger than ever before and on a remarkably socialist platform (most likely due to the influence of the trade unions) the ANC won an overwhelming majority of 76% in both houses of Parliament. The DA came in a distant second even after managing to forge a new opposition alliance with the next 4 biggest parties.
The new parliament wasted no time pushing through a number of legislative initiatives ranging from legislation to further regulate communications facilities in South Africa (promoted heavily by deputy President Ivy Matsepe-Casaburri), fully managed public healthcare (the medical aid schemes didn’t stand a chance) and the first of many substantial constitutional reforms beginning with a removal of the term of office of the President. With its majority in parliament, the ANC soon realised the power it yielded. President Mbeki remained in office for a third term and restructured the Executive arm of government. Ministers were effectively demoted to advisors to the President who made all but the more trivial decisions. Reasons of national security were among those cited by the President’s spokesman.
The last few months have been overwhelming. This morning the President signed a bill amending the Constitution. The effect of this amendment is to remove the State from the purview of the Bill of Rights and much of what remains of the Constitution. Of course the newly amended Constitution is still hailed as a model Constitution as between citizens (recently a somewhat vague concept due to legislation depriving emigrants of their citizenship from the moment of their departure) but without mechanisms binding the State, the government is pretty much free to do as it chooses. Helen Zille, the now beleagured leader of what remains of the opposition in parliament once commented on the emergence of an imperial presidency. I wonder if she could have foreseen just how terribly true her theory would become?
Looking back on blog posts from the time, this passage by Michael Trapido strikes me as ironic:
Here we are going to have to realise that sometimes issues far greater than the rights of citizens in terms of their Constitution are at play.
If not, you may well be rewarded with a Constitution that is printed out, then turned over so that the new president can use it as scrap paper when writing out his orders.
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constitution, constitutional democracy, constitutional power, mbeki, zuma, fiction, abuse of power, constitutional court, president, bill of rights, imperial presidency
Related posts:
- Deputy President Jacob Zuma “released”
- “… corruption is inconsistent with the rule of law and the fundamental values of the Constitution …” – Shaik conviction confirmed
- Controversial judicial legislation rejected by President
- Populist democracy has failed us all
- Supreme Court of Appeal tackles the Jacob Zuma case
