Radebe presented a well-researched argument for why the review was necessary. It had all been said before by other government officials, albeit less eloquently. Seventeen years into our democracy, we need to assess how far we’ve come toward achieving the vision of a united, non-racist, democratic and prosperous society as enshrined in the Constitution, Radebe said. This vision is at the heart of the transformation agenda the government has been pursuing, he added.

Quoting retired Constitutional Court Judge Kate O’Regan’s 2011 Helen Suzman memorial lecture, Radebe said the inequalities created by apartheid and colonialism were still visible today, and the vision of the Constitution would not be realised unless these inequalities were addressed. The judiciary, as one of the three arms of the state, was enjoined in realising the Constitution’s democratic values, according to Radebe.

However, Dene Smuts, Democratic Alliance shadow minister of justice and constitutional development took exception to this, arguing that the courts cannot be co-opted into cooperative governance without losing their independence.

“The danger persists government will use this exercise to co-opt the courts into a kind of Chapter 3 cooperative governance. That cooperative governance is constitutionally limited to the three spheres of government proper (national, provincial and local), as opposed to the three branches of state (executive, legislative and judicial),” Smuts said in a statement.

Smuts painted the comical image of Constitutional Court judges sitting in national and provincial executive committees discussing how to achieve the transformation agenda of which Radebe spoke. She added it remained problematic that Cabinet was going ahead with the exercise.

“The courts are accountable to no-one for their judgments,” she said.

Nonetheless, the motive and outcome, not the need, for the review was what has been subject of most of the controversy. On the motive of the review, Radebe reaffirmed the executive’s commitment to the separation of powers and the independence of the judiciary. 

“It has occurred a number of times where the Constitutional Court had invalidated laws passed by Parliament. This is a common in constitutional democracies and (is) an affirmation of the vibrancy of our constitutional democracy founded on the supremacy of the constitution and the rule of law,” he said.

Radebe argued the number of laws struck down by the courts in relation to the 1,100 laws passed since 1994 had been negligible, so it cannot be said the review has been prompted by an executive smarting from several hidings in the courts.

Counter to sentiment that the Constitution was a fatal concession of the Codesa negotiations, as expressed by the ruling party’s executives, Radebe said, with some hubris, “The independence of the judiciary is not at stake. Even the mere fact that we have a constitutional democracy is due to the ANC.”

On the outcome, the part everybody was eager to hear, Radebe was vague adopting a wait-and-see approach.

“The outcome of the assessment and the accompanying recommendations, analysis, research papers and opinions will form (the) basis[sic] for seminars and a national conference which will take place after the completion of the exercise,” he said.

Constitutional law professor Pierre de Vos expressed disappointment that uncertainty remained over what the review was supposed to achieve and why it existed. He said the terms of reference, which had been finalised, but were yet to be made public, should hopefully provide that clarity.

He added that further uncertainty remained over who was going to conduct the review and what exact process would be followed. Radebe only said it would be done by a single or any number of research institutions, and that those institutions would:

• Analyse the transformational impact of the decisions of the Constitutional Court from its inception
• Assess how the court’s decisions had impacted on all branches of the law’s ability to deliver on the transformational goals
• Assess the impact of the judiciary in building a jurisprudence in harmony with the Constitution
• Assess the impact of the state in giving effect to the decisions of the court.

“The minister did not exclude the possibility of actually changing the Constitution as a result of the review,” De Vos added.
De Vos said it was good that the executive was looking to bring in academic institutions which would serve as independent voices, but cautioned that much still depended on the terms of reference of the review.

If, after 18 months, the review came to the conclusion the Constitutional Court’s powers should be curtailed, Radebe said, “We’ll have to cross that bridge when we reach it”. DM

Photo: Jeff Radebe (iMaverick)