Sanitising lawlessness

Zuma walks the same constitutional route as old Nat leaders

The Rand Daily Mail - Allister Sparks

26 April 2016

Liberation movements are driven by idealism, but that quickly wears off when such a movement comes to power. If there is a lesson in these parallel experiences (President Zuma's recent clash with the Constitutional Court and the National Party Government's bitter conflict with what was then the Appellate Division of the Supreme Court in the old South Africa), it is surely that power can become addictive and needs built-in constraints. 

The old French saying that the more things change the more they stay the same, was never more apt than in the attitudes towards democracy being displayed by President Jacob Zuma's African National Congress (ANC) and those of the National Party (NP) regime of the apartheid era.

In the French case, the saying may have stemmed from an observation that their Eighteenth Century revolution had begun with the objective of overthrowing an absolute monarchy, and ended with the establishment of a Napoleonic dictatorship.

Certainly there appears to be a persistent pattern in human affairs, of a series of seemingly ground-breaking events tending to cycle back until they become eerily reminiscent of their beginning. It seems that change and constant are two sides of the same coin. As are freedom and the arrogance of power.

I am noting these points because the more I encounter the domineering attitude of leaders of the Zuma ANC, the more I cast my mind back to the overweening arrogance of the old NP leaders. The voices of those who claimed they had come to power to liberate their people ("We have our country back," cried the triumphant D F Malan in 1948), soon began to display symptoms of believing they had an inalienable right to rule forever ("The ANC will rule until Jesus Christ comes again," says Zuma).

This attitude has revealed itself most vividly in the way both parties  responded to constitutional limits on their powers. Both invoked the concept of the "sovereignty of Parliament" to contend that no court should have the right to overrule any law passed by the legislature.

Judges are appointed civil servants and shouldn't have the right to trump decisions of the elected Members of Parliament, goes the argument.

It is an argument that can sound plausible but it is not compatible with a constitutional democracy, which is designed to place specific constraints on the exercise of political power. Unrestrained power is dangerous. One should never forget that Adolf Hitler was initially elected to the German Reichstad.

While we are all aware of President Zuma's recent clash with the Constitutional Court, there are probably few around today who can recall the National Party Government's bitter conflict with what was then the Appellate Division of the Supreme Court in the old South Africa. It was an epic struggle between judges and politicians that lasted from 1951 to 1956.

The constitution of the old South Africa had only two entrenched clauses. One entrenched English and Afrikaans as the country's official languages; the other guaranteed the right to vote to Coloured men of the former Cape Colony who met property and literacy qualifications.

This had been the clumsy compromise reached when Britain granted independence in 1910 to the Union of South Africa, comprising her colonies of Natal and the Cape, together with the former Boer republics of Transvaal and Free State. While black people had no franchise rights in the old republics, all men regardless of colour who met those property and literacy qualifications had been able to vote in the two colonies.

Sixteen years later, when the NP's Barry Hertzog came to power, the black men who qualified for the franchise were placed on a separate roll and allowed to vote for three white MPs.

Fast forward another 12 years and we have Malan's NP in power with its apartheid policy. Inevitably it wanted the Cape Coloureds off the common roll as well -- but this time it ran into that entrenched clause specifying that this required a two-thirds majority of the two houses sitting together.

The NP didn't have that kind of majority, but Malan, acting on the principle of "parliamentary sovereignty," backed up by questionable legal advice, went ahead and passed his Separate Representation of Voters Act by a simple majority in each house separately.

Four Coloured voters took the matter to court, where it eventually came before the Appellate Division of the Supreme Court. There, in a judgment written by Chief Justice Albert van der Sandt Centlivres, the Act was declared "invalid, null and void."

Malan declared the judgment to be unacceptable, adding that the government refused to abide by it and would take steps to have it overturned. The NP went back to the drawing board to draft what must surely be one of the most outrageous laws ever brought before any legislature. Called the High Court of Parliament Bill, it was designed to do just that -- to turn Parliament itself into the country's supreme court of law.

With the country in uproar the High Court of Parliament Bill was duly passed by Parliament. The Speaker appointed six government members and four opposition members to sit as a Judicial Committee under the chairmanship of the Minister of Justice.

The opposition members boycotted the sitting, whereupon the all-NP committee dutifully reverse the Appellate Division's ruling -- only for the four Coloured voters to take the matter back to the Supreme Court, where the Appellate Division once again declared the whole procedure unlawful.

A wonderful spectacle of courts declaring each other invalid that would have been hilarious had it not been so serious.

In the end the NP had its way, as authoritarian regimes nearly always to do. It won the day by simply enlarging the Senate until it had enough members to reach its two-thirds majority with the two Houses sitting together. A crude strategy whose only merit was that it enabled cartoonists to have a field day portraying enlarged senators as grotesquely overweight individuals.

If there is a lesson in these parallel experiences, it is surely that power can become addictive and needs built-in constraints. Liberation movements are driven by idealism, but that quickly wears off when such a movement comes to power. Then, too often it becomes infused with a sense of entitlement.

It is the party that made the sacrifices and fought the good fight for the liberation of its people. Therefore it has earned the right to rule, to decide what is best for those it has liberated. That is its entitlement, and no-one, no obstacle, constitutional or otherwise, has a right to stand in its way.

It is a dangerous self-assumption, but it is one we have seen over and over again in our continent as its countries have gained their independence. It is why the Founding Fathers of our new South Africa were at pains to make sure  this would be a constitutional democracy, with built-in constraints to prevent any future government from becoming too domineering in its exercise of power.

President Zuma says his violation of the constitution was the result of bad legal advice. No-one should buy that, any more than Malan should have been forgiven for his egregious disenfranchising of the Coloured voters. It doesn't require a lawyer to tell you that an oath is an oath, and that any national leader who violates his oath of office should be removed from it.

Allister Sparks
26th April 2016
A former editor of the Rand Daily Mail. His new memoir, "The Sword and the Pen," is now available in bookstores.