Carnegie Reporter, Vol. 4, No. 2 | At The Heart of South Africa: A Constitution & A Court, page 5

The Role of the Judiciary
During the constitutional negotiations, there were many who thought, given South Africa’s history—where the population was divided not only by race and ethnicity but also by class and economic status—it was critical for the nation’s new foundational document to address not just civil and political rights, but economic rights, as well. Yet Justice Kate O’Regan—who spent much of her legal career before joining the Court in using the law as a strategy of resistance and reform in terms of labor, land rights and gender—cautions that the Court can only do so much in addressing socioeconomic disparities.

“Democracy must be managed by elected representatives, not a ju-diciary,” she says. “The job of the courts is to set the parameters and see that they are observed. This includes seeing that the government takes reasonable steps to provide access to and improve education, health, water, housing, etc. What we don’t do is say, ‘Give Mrs. Jones
a house.’”

Chief Justice Langa agrees. “The courts,” he says, “are not the only venue for pursuing socioeconomic rights. Civil society must educate the public about their rights and then the public must act to achieve them.”

Langa describes this process as “the government being called to account by citizens using the courts.” As an example, he points to a sustained and vocal campaign by civil society groups opposed to a government policy of providing anti-AIDS drugs to only a limited number of pregnant women who tested HIV-positive. (The drugs reduce the transmission of the HIV virus to unborn infants.) AIDS activists sued, and in 2002, the Constitutional Court ruled against the government and ordered that the medication be made available to all women who wanted it.

Despite this victory, there are those who still believe that the Court has not been as involved as it should be in socioeconomic issues and who also feel strongly about the fact that when the Court has involved itself, it has ruled the wrong way. Says Wim Trengrove, one of South Africa’s leading attorneys, and one who has argued many cases before the Constitutional Court, “I think it’s true that the Court is least active in the area of socioeconomic rights. And there is a popular groundswell of unhappiness with several Court rulings, which threatens the strength and validity of the Constitution. Making the Court and the Constitution work for poor people is the best way to protect the Constitution.”

Others see threats to the Con-stitution coming not from a gradual grassroots mobilization against controversial rulings but from the ANC government itself. The pivotal issue is what South Africans refer to as the “transformation of the judiciary” to overcome the legacy of the nation’s courts, which played a crucial role in upholding the apartheid system. Now, efforts are being made to create a judiciary that, in Langa’s words, “looks like the population.” A case in point: at the start of democratic rule in 1994, South Africa had only two black and two women judges out of a total of ninety-four. The rest were white males. Today, out of one-hundred-and-forty-six judges, sixty percent are black and twenty percent are women, though many still feel that, while progress in this arena has been made, it is going too slow.

But more critically, in 2005, President Thabo Mbeki proposed amendments to the Constitution that many saw as a threat to the independence of the judiciary. The proposals included handing administrative power over the courts—which now rests with the Chief Justice of the Constitutional Court—to the government’s Justice Minister, and putting the Minister in charge of the Court’s budget. In a major victory for supporters of judicial independence, Mbeki announced in 2006 that he would withdraw his proposals to allow for participation by the public and by the judges themselves in the debate over the role of the courts in the new South Africa society.

Commenting on his actions in withdrawing the proposals, Mbeki repeated the government’s commitment to complete the transformation of the judiciary, saying, “We can neither afford nor allow the situation that our judicial system loses credibility with our people as a whole, arising out of our failure openly to consider the challenges that face the judiciary and the magistracy in the context of the national transformation process.” He added, “At the same time, we must state this unequivocally: that the ANC remains firm in its belief in the rule of law and the independence of the judiciary as set out in the Constitution, as well as the respective roles of the legislative and executive authorities.”

In response, Chief Justice Langa notes that the Constitutional Court has spent its first ten years laying the groundwork for the nation’s jurisprudence and set a forward-looking direction. “Now we must move toward consolidation and making sure the roots grow deeper. If the court is stable, then democracy will be that much more secure.”

Kenneth Walker, who currently runs Lion House Production, a South African strategic communications firm, has had a distinguished career as a journalist. In the U.S., he worked for ABC News, covering the White House as well as the U.S. Justice Department and also served as a foreign correspondent. Before that, for 13 years he reported for The Washington Star newspaper, which assigned him to South Africa in 1981 where his work earned several of the most prestigious awards in print journalism. In 1985 he won an Emmy for a series of reports he did on South Africa for the ABC news program Nightline.