A lawyer’s response to the current travails of South African constitutionalism - PULP FICTIONS No. 5

Karin Van Marle

Description

In this edition of Pulp fictions we have shifted from the usual paper and respondent format. In May this year Judge Johan Froneman delivered a talk called, ‘A lawyer’s response to the current travails of South African constitutionalism’ to the South African Law Deans Association. The talk is reproduced here. In his talk he carefully considers some of the many challenges and tensions faced by not only lawyers and legal scholars, but also by ordinary South Africans living within a post-apartheid context. Responding to a statement by retired Constitutional Court judge, Johan Kriegler, that in many cases commitment to the principles of rule of law and democracy amount to ‘mere lip service’, Froneman paradoxically calls for exactly ‘lipservice’ to be paid to the constitution. Froneman’s talk, like all words, could of course be interpreted in many ways. However, given his commitment to engagements that go beyond the merely instrumental, we could consider interpretations that disclose possibilities such as lip-service as performativity,1 lip-service as double-gesture,2 or at least lip-service to the principles and ideals of constitutionalism and human rights in the vein of what Patricia Williams calls an ‘unlocking’.3About the Editor:Karin van Marle is a Professor at the Department of Legal History, Comparitive Law and Jurisprudence, at the Faculty of Law, University of Pretoria

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2009
• Nombre de lectures: 0
• Langue: English

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A LAWYER’S RESPONSE TO THE CURRENT TRAVAILS OF SOUTH AFRICAN CONSTITUTIONALISM

2009

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Editorial

In this edition ofPulp fictionswe have shifted from the usual paper and respondent format. In May this year Judge Johan Froneman delivered a talk called, ‘A lawyer’s response to the current travails of South African constitutionalism’ to the South African Law Deans Association. The talk is reproduced here. In his talk he carefully considers some of the many challenges and tensions faced by not only lawyers and legal scholars, but also by ordinary South Africans living within a post-apartheid context. Responding to a statement by retired Constitutional Court judge, Johan Kriegler, that in many cases commitment to the principles of rule of law and democracy amount to ‘mere lip service’, Froneman paradoxically calls for exactly ‘lip- service’ to be paid to the constitution. Froneman’s talk, like all words, could of course be interpreted in many ways. However, given his commitment to engagements that go beyond the merely instrumental, we could consider interpretations that disclose possibilities such as lip-service as 1 2 performativity, lip-service as double-gesture, or at least lip-service to the principles and ideals of constitutionalism and human rights in the vein of 3 what Patricia Williams calls an ‘unlocking’.

Karin van Marle(Editor) Department of Legal History, Comparative Law and Jurisprudence, Faculty of Law, University of Pretoria

1 See for example B Honig ‘Declarations of independence: Arendt and Derrida on the founding of a republic’ (1991) 85American Political Science Reviewand J 97 ButlerGender trouble: Feminism and the subversion of identity(1990). 2 See for example J DerridaWriting and difference (1978) andThe politics of friendship(1997). 3 P Williams ‘Alchemical notes: Reconstructing ideals from deconstructed rights’ (1987) 22Harvard Civil Rights-Civil Liberties Law Review433. See also P WilliamsThe alchemy of race and rights(1991).

A lawyer’s response to the current travails of South African 1 constitutionalism

Justice Johan Froneman

Thank you for the invitation to address this gathering tonight. I am always nervous when speaking to academics, because I can’t seem to forget that you are in the business of giving marks to people to decide whether they pass an exam or not. So I would like to start with three disclaimers, or mitigating features, that I would appreciate being taken into account when you decide what mark to give me for my singing for my supper tonight. The first is that there was some discussion about the cost of me flying here from East London and whether my talk would be worth that cost to SALDA. I expressed some doubts about that, but Professor Lawack-Davids was kind enough to insist it was worth SALDA’s while. Eventually we settled costs on a 50/50 basis, so please lower your expectations of what to expect immediately by a half! The second disclaimer occurred to me when I read Johan Kriegler’s description of himself, when delivering the Second International Rule of Law Lecture of the Bar of England and Wales in December last year, as a ‘journeyman judge’, not a philosopher. Well, if he is only a journeyman judge, then you’re only hearing from an apprentice footslogger tonight. The third disclaimer is that my talk is not learned or academic in nature, but really only some random thoughts on how we are doing at this stage in our attempt at constitutional democracy. So, I hope I have now lowered expectations to a sufficiently realistic level to enable me to proceed.

It is perhaps a good starting point for my talk to quote Judge Kriegler’s conclusion on the question whether anything of value remains of the Rule of Law in Britain’s former colonies in Africa. He said this:

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The Rule of Law is indeed acknowledged throughout Anglophone Africa as a guiding principle of statecraft. It enjoys universal recognition as an aspirational norm, a benchmark of participatory

Address to South African Law Deans Association, Port Elizabeth, 7 May 2009.

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democracy; and even though this is often mere lip service it is 2 nevertheless heartening. I am not for a moment saying that Judge Kriegler intended his address to be understood in this manner, but I think it is reasonable that his British audience might have understood its assumptions to be, firstly, that the rule of law was bestowed on Anglophone Africa by a generous and benevolent colonial ruler and that, secondly (and rather unfortunately), we in Africa only pay lip-service to the rule of law while we act primarily in breach of it. On that understanding the main problem is our lip-service to (and breach of) the rule of law here in Africa and the solution to the problem is to discard the lip-service and apply the rule of law as understood and developed by our erstwhile colonial rulers. I do not accept that understanding of what is happening to the rule of law or constitutionalism in South Africa at all. What I am going to try and do is to turn the argument on its head. The primary problem lies not in our lip- service to a western and colonial conception of the rule of law, but in our failure to articulate clearly that our own conception of the rule of law and constitutionalism goes beyond that historical colonial and western origin. And the solution to that problem lies, at least partly, in paying as much lip- service to our own constitutional conception of the rule of law, not only tonight, but over and over again, tomorrow and in the future. In a sense my talk is about the value of lip-service in establishing a constitutional democracy under the rule of law.

Much of our problems, or ‘current travails’ in the words of the topic for this address, stem from the fact that for many the rule of law is indeed a colonial legacy and for that reason it is tainted and viewed with suspicion. I would go as far to say that our central problem is that the rule of law, or to put it into other terms for tonight’s purposes, constitutionalism, is not yet entrenched in the fabric of our society. We have a long way to go in making it our own, post-colonial, legacy. A lot of hard work needs to be done in that regard. That is the bad news. The good news is that it can be done. And that is the second contrary theme that I take from Judge Kriegler’s conclusion that I quoted earlier. The rule of law, constitutionalism, can be established and entrenched in our society by paying lip-service, never-ending lip service, to ourownconception of constitutionalism and the rule of law.

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Kriegler, Second Annual International Rule of Law Lecture, 3 December 2008, Gray’s Inn Hall, London.

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I will try and explain why paying lip-service is important and works beyond mere words a bit later, but for now it is important to stress that we must pay this lip-service to ourown conception of the rule of law and constitutionalism and not to colonial and western conceptions of it. This is so, not only because of anger at our colonial and apartheid past, but simply because the colonial legacy and understanding of the rule of law did not help us in the past and will not necessarily help us in the future. I do not think I need to convince this audience that Dicey’s conception of the rule of law and Hart’s concept of law did little to bring us our freedom. And I do not think I will convince anyone either that their ideas are going to play the major role in entrenching the kind of freedom that we aspire to. It will indeed be a grave mistake, in my judgment, if we seek to defend the rule of law and constitutionalism only in terms of traditional western liberal thought. The rule of law, the notion of constitutionalism that is ours, is not only restricted to certainty and formal equality before the law, but most importantly, incorporates justice (or the aspiration to justice) as part of it.

For a proper defense of that understanding we need go no further than our Constitution itself. We can defend ourselves against any charge of a tainted colonial, liberal or western conception of the rule of law (or constitutionalism), by simply telling the story of how our Constitution came into being and by relying on its contents, on what it tells us.

(I try to tell my children that story and I think they have fallen for it. My eldest daughter was so excited at the opportunity to vote for the first time two weeks ago that she cried when she realised, the day before the election, that she had mislaid her identity document. And then a true miracle occurred. The department of home affairs (yes, home affairs!) had offices open on election-day for people like her. That allowed her to get temporary documentation that enabled her to exercise her freedom to vote. She ended the day on a happy note. Her story of acceptance of our Constitutional story is replicated in many different ways every day in this country in the lives of ordinary people, despite the obstacles (like a normally dysfunctional department of home affairs) that often stand in their way.)

So we have a wonderful story to tell. Of how people who, to all the world, looked as if they were going to end up killing each other on a mass scale, ended up by getting together and forging something, our Constitution, to express the ideals we strive for, despite our disparate and conflicting pasts. But the story we must tell and keep on telling gets even better. The content, the fundamental values, of the Constitution, tells the story that we as a people have seen and experienced the things we do not want to

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experience again. It is a ‘never again’ Constitution, but also a very special kind of ‘never again’ constitution. It is not the kind of constitution that says the freedom we aspire to is the formal promise that both the rich and poor have equal rights to sleep in the smartest hotel in town, well knowing that the poor can only afford to sleep under a bridge as shelter. We know from our bitter experience that such a promise is an empty one. It is the kind of constitution that says that we must make sure that the poor should not be left to sleep under a bridge for shelter, but that they should have access to better housing, better kinds of shelter, as well as to other basic rights. It is the kind of constitution that recognises that to be able to live the good life one needs access to basic means — without those needs being fulfilled the good life cannot exist. What I am trying to say is that we have a great story to tell our children, our leaders and ourselves. It is not an unbelievable story or a fairytale – it happened and it is happening all day around us if we take care to look for it. But of course I am not saying that all is well, because it clearly is not. But that does not mean that all is lost either. Perhaps we must just remind ourselves of what someone, I think it was Max du Preez, said, namely that we South Africans generally tend to stuff things up, but we usually stop doing so before the worst happens. And it seems to me that we can stop the worst from happening by sticking to our constitutional story, by paying endless lip- service to it. How can paying lip-service to our constitutional story help us? Let me try and suggest an answer to that by asking you to play a game with me. Let us imagine, from four different perspectives, what kind of language we will use when asked about our intentions for the immediate future in our country, given a choice between using the language of the rule of law and constitutionalism or not using it. Our first imagining will be from the perspective of the incoming President of our country; the second from the perspective of a Judge President of a provincial High Court facing disciplinary action in the JSC; the third from the perspective of the new National Director of Public Prosecutions; and the last from the perspective of a Dean of one of our Law Faculties. Let us start with the new President. He cannot say something like the following and, importantly, he has never said it: I have shown that it is possible to use both legal procedures and political power to circumvent and prevent me from being prosecuted for crimes I indeed committed. Now that I have done so, I will use my political power to unseat all those who tried to stop me from

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becoming President and install all those who supported me to important positions of power and influence so that they can also benefit financially and in a corrupt and unlawful manner from these positions of power and influence. That is my main aim. I care little for the poor and downtrodden people in this country.

What he can say, and to some extent has said, is this: I have personally experienced the abuse of constitutional powers in order to settle political disputes. This abuse demeaned the high ideals of our Constitution. It must never happen again. I will take steps to ensure that important constitutional institutions such as the office of the Director of Public Prosecutions cannot be abused in the same manner again. The courts themselves have not been part of this abuse, as can be seen from the fact that many of the judgments concerning me have gone my way, although others have not. The courts must realise, however, that they too are subject to what the Constitution demands of all of us and that they are not immune to the continuing political debate and process in our society. That is not a statement that threatens the fundamentals of the Constitution - it is a statement in keeping with those fundamentals. I intend to put this unfortunate past behind me and work towards the upliftment of the poor in our society, as the Constitution demands of me. It is inconceivable that our imaginary Judge President of a High Court will say something along the following lines: I am the youngest black Judge President appointed under our new dispensation. That entitles me, because I am representative of the previously oppressed people in this country, to further my own personal career without having regard to what effect those personal ambitions may have on the institution of the judiciary as a whole. I am thus entitled to pursue personal business interests that may conflict with my duties as a judge, and attempt to influence higher court judges on issues relating to the prosecution of a man of my own ethnic tribe who might become president of the country. I am also entitled, when I am accused of doing these things, to delay, by the means used by ordinary scoundrels in the courts of the land, the proper and definitive resolution of these allegations by the institutions designated under the Constitution to deal with these issues in the hope that our new president and parliament will assist me in attaining my ambition to become a member of the Constitutional Court and perhaps even the next Chief Justice. What he or she may, and should, say is something like this: Because I am privileged to be one of the first previously disadvantaged people to become a Judge President of a High Court I

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carry a special responsibility to ensure that my conduct makes others proud of what may be achieved under our own new Constitution. I recognise that my acceptance of this position means that I have to forgo the considerable financial benefits that other talented individuals in my position who go into private business may acquire. I accept that as a judge I should always conduct myself in a manner that enhances the credibility of the judiciary as an institution. That means that when I am unfairly accused of things I did not do, I will abide by the constitutional mechanisms to resolve those issues and assist in doing so in an expeditious manner. As a judge I have an obligation not to act in the same way as an ill-advised ordinary citizen might do, by exploiting the loopholes for delaying the administration of justice that we as judges all know exist, but which we try to prevent and eradicate as much as possible in our daily judicial work. To do otherwise would undermine the esteem of the judiciary in the eyes of the community in a much more immediate and serious way than a dispute between the executive and judiciary about the exact boundaries of their respective constitutional powers or authority would do. The task of the judiciary is to ensure that the promise of the Constitution, especially to the poor, is fulfilled and when the judiciary comes into conflict with the other arms of government in order to hold the other arms of government to that promise, the esteem of the judiciary in the eyes of our society is likely to be enhanced, not reduced.

The new Director of Public Prosecutions will not and cannot say: I have seen how the wind blows when a person in my position attempts to prosecute someone with political power. I owe my appointment to a new government whose bidding I will do as far as I can. I will not prosecute those in power even if they are corrupt. What he or she can and probably will say is: Our recent past has shown us the perils of political interference in decisions whether to prosecute those in government positions. The President has indicated that he is painfully aware of the effects of that kind of abuse of power and will, during his tenure, seek to ensure that it never happens again. I share that commitment and will do my utmost to attain that goal. Our imaginary Dean of a Law Faculty cannot say: The most important thing for law teachers is to ensure that they attract enough law students so that the law faculty can be viable financially. If that means a sub-standard four year LLB degree, so be it. To the extent that we are able to, all we are required to do is to provide law students with knowledge of the rules of positive law. The principles underlying those rules or reasons for the existence of those

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rules or for their future application, is part of philosophy or politics, not law. What she or he might say is: Our aspiration to become a secure constitutional democracy will not succeed if our students leave law school without a fundamental understanding of the values underlying our Constitution. Those values give expression to our conviction that law must aspire to justice, and that the aspiration to justice informs all the branches of the law, public and private law alike, albeit in different ways. We also realise that the proper practical application of the law in the courts depends ultimately on the quality of legal service given to litigants by legal practitioners. If the legal education would-be practitioners receive is inferior then the administration of justice must in the long run also suffer. We will strive to avoid that. If I am correct that none of our four candidates will take the option of not paying lip-service to the rule of law or our constitutional democracy, what then is the significance of that choice?

I think it may be this. For the rule of law and our constitutional democracy to survive and prosper it is necessary for both the citizens of this country and the officials administering the country to accept the rule of law in their private and public conduct. Does it matter why citizens and officials profess adherence to constitutionalism and the rule of law? I happen to believe that an idealistic commitment to their worth is the one that will be the most enduring. But I accept that the reasons for acceptance may also be strategic and practical. It may be strategic for many different reasons — gaining the co-operation of others, holding on to power, seeking legitimacy beyond mere power, or a wish not to offend international investors. Or again, it may simply be practical to have a settled way of expressing, making and applying the law and not to upset the stability of the South African apple cart for the moment. What matters is not necessarily the correctness of the underlying reasons for using the language of constitutionalism and the rule of law, but the fact of its use.

Our topic tonight is a ‘lawyer’s response’ to all this. So let me end off by saying this. We are not alone in recognising the fragility of the rule of law. In his book on established western democracies, Law in modern society, Prof 3 Denis Galligan writes:

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DJ GalliganLaw in modern society(2007) 236.

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Law’s capacity to create the conditions of official self-restraint could truly be considered the unique gift of modern legal orders; at the same time it is fragile and contingent, always competing with the natural forces of social power and bureaucratic organisations, always at risk of being overpowered by them … 4 And further on: Among the ways of testing the degree of commitment of a society to a set of ideals, the level and quality of institutional and organisational support is of special note. In the case of the rule of law, public expressions of support for it in documents … are one sign; other signs can be gleaned from the statements of government officials, their daily practices, and their attitudes. However, among these factors and others, perhaps the most important is the position of the courts and lawyers, for the very basis of their profession is the notion of law as a distinct social form, the practice of which requires special knowledge and training. To them is entrusted custody of the rule of law, not as a special task or favour, but as the basis of their existence. More than dedication may be needed, but it is surely necessary, for where courts and lawyers neglect the nature of their undertaking, or are unable to achieve it, the chances of the rule of law emerging or surviving are slight. Where they are secure in that undertaking, the daily affirmation of the rule of law through both declaration and practices, as a foundation stone for society, has a significant effect on attitudes and practices well that go well beyond those of laws and courts. So let us keep on telling our constitutional story, even though at times it may sound only like lip-service. Our past history may require us to tell it with humility, but the Constitution demands of us to do it without apology. Thank you.

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Galligan (n 3 above) 285.