OPINION: Twenty-two years after the end of apartheid, South Africa’s Constitutional Court is one of the few meaningfully independent public institutions left in the country.
Its decisions on political and social rights in particular have helped to counteract the worst effects of the governing African National Congress’ political dominance. In this way it has contributed to the consolidation of South Africa’s democracy.
How has the court come to play this role?
Neither of the two main currents in the literature on the conditions for independent judicial decision-making really provides an explanation.
The first, called “the regime politics view”, holds that constitutional courts seldom deviate far from the ideological preferences of the dominant political coalition in a country.
While true of the US Supreme Court for much of the last century, this theory does not travel well. It also fails to account for judicial agency – the capacity of constitutional courts to exert an independent influence on the political environment in which they operate.
The second, “tolerance interval theory”, stresses the capacity of constitutional courts strategically to build their institutional power. The problem with this theory is that it treats courts as ordinary political actors. But their independence self-evidently depends on maintaining a reputation for legally motivated action.
The South African experience suggests there may be a middle road between these two theories.
Improving democratic processes in the ANC
In the Treatment Action Campaign (TAC) case, for example, the court was able to enhance the quality of the ANC government’s internal democratic processes. That is significant because the ANC’s political dominance means the quality of democracy within the party is one of the major determinants of the quality of South African democracy more generally.
The case concerned a demand by a social movement that the government expand the pilot sites it had created for the prevention of HIV transmission between pregnant mothers and their infants.
As Mark Heywood has shown, what lent the case its distinctive character was the way in which the TAC ran it from inside the ANC as a case that centrally concerned then-president Thabo Mbeki’s leadership style. In bringing its claim, the TAC was thus careful to enlist the support of the Congress of South African Trade Unions, a member of the governing ANC-led alliance.
In this sense, the successful outcome of the case is attributable to the applicant’s skill as a public impact litigator. But the court also played an active role.
The flexible review standard it had adopted in the earlier Grootboom case facilitated the TAC’s litigation strategy. And the diplomatic way in which Chief Justice Arthur Chaskalson worded the court’s decision did much to quell the executive’s resistance to the constitutionally required outcome.
The court’s role in improving the quality of the ANC’s internal democratic processes can also be seen in the Ramakatsa case. Here the issue was whether the ANC’s failure to respect its own procedural rules for the selection of delegates to a provincial party conference violated the constitutional right to political participation.
Before the TAC case, a credible argument might have been made that the right to participate in a political party’s activities could not be violated by internal procedural irregularities of this sort.
After the TAC case, it was clear that the quality of democracy in South Africa is as much about the right to have one’s voice heard within the party of one’s choice as it is about the right to join a political party. That doctrinal advance cleared the way for the court in Ramakatsa to uphold the appellants’ claim.
An active player
The TAC and Ramakatsa cases show that, while constrained by South Africa’s dominant-party regime, the Constitutional Court has not been an entirely passive actor in the drama of the country’s politics. In small, incremental steps, it has been able to expand the constitution’s reach into areas previously thought to be off-limits.
By carefully managing public perceptions of their appropriate role in national politics, the South African example suggests that constitutional courts may be able to expand the range of democratic rights that they are able to enforce.
This may, in turn, contribute to improvements in the functioning of the democratic system in ways that sustain the court’s democracy-strengthening capacity over time. In the best-case scenario, courts may be able to trigger a virtuous feedback loop, with each decision they take to protect the democratic system. This would enhance their capacity to continue doing so.
This article is based on a longer paper, Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 years, published in the Journal of Southern African Studies in 2016.
Theunis Roux is a Professor of Law, UNSW.
This opinion piece was first published in The Conversation.