dictatorship was largely exercised in ways which were fully legal. Under democratic constitutional rule, in contrast, governments are bound by the constitution, and the constitutionality of the laws they enact and the actions they take can ultimately be challenged. The foundation for this was laid down by the requirement of the ‘interim’ constitution of 1994 that the final constitution, as approved by a constituent assembly, should secure the concurrence of the Constitutional Court that it was in line with agreed constitutional values. This is a constraint that the various ANC governments have had to take seriously, for on different occasions the Constitutional Court has ruled against the constitutionality of actions or ordered the government to fulfill its obligations.
In a recent contribution, Theunis Roux (2012) has argued that the success of constitutional courts is bound up with their capacity to negotiate a tension between politics and law. From this perspective, he has proposed that the Constitutional Court in South Africa has managed to balance its concerns to maintain its independence (its ability to act as the arbiter of the Constitution) by carefully assessing the political risks of its ruling against the government. His approach emphasises the importance of the Constitutional Court’s ensuring its legitimacy among citizens, thereby undercutting any tendency of an elected government to equate majoritarianism with democracy. Indeed, a key part of this strategy was the Court’s depiction of its role as tantamount to holding the ANC in government to its own longstanding human rights commitments. In other words, it has sought to ensure that although its decisions may go against the government they are not directed specifically at the ANC. Nonetheless, Roux fears that the political threat to the Court (and hence to the Constitution) is increasing. On the one hand, the slow rate of economic growth and the continuing failure to redistribute wealth is exhausting the patience of poor South Africans and ‘the time for gradualist, rule-of-law-respecting social reform is running out’ (Roux 2012). On the other hand, the ANC’s descent into factionalism is encouraging a drift towards populism, and a tendency of both left and right factions of the party to ascribe the country’s developmental shortcomings to constraints imposed by the Constitution.
The threats to constitutionalism are real. At one level, they are philosophical. The ANC’s liberation movement heritage is clearly emancipatory, yet it is simultaneously authoritarian (Southall 2013). The ANC demonstrated by its leading role in the struggle for freedom that it embodies liberal and human rights values, and it was hugely instrumental in seeing these placed at the centre of the Constitution. Against this, however, the ANC evinces marked tendencies to view itself as the embodiment of the nation, a monopolistic perspective which encourages a majoritarian persuasion, designates opposition as counter-revolutionary – if not illegitimate – and is impatient of minority rights and legal restrictions. Its essentially Leninist conception of state power, and its projected need to capture the commanding heights of society and the economy, proclaims not only its right to rule (based upon its understanding of its role in history as much as upon its electoral pre-eminence), but is also fundamentally at odds with the separation of powers as laid down in the Constitution. Consequently, while ANC governments (under four different presidents) have remained wary of challenging the Constitution head-on, they have often pursued a strategy which has sought to undermine it. Most notoriously, presidential powers of appointment have been used to bend state prosecutorial and intelligence services to the advantage of dominant factions in the party, stripping them of their independence and involving them in intra-party factional battles (as illustrated most vividly by their being drawn into the long-running bitter contest between Thabo Mbeki and Jacob Zuma, culminating in the latter’s eventual ejection from office). At all levels of government, too many appointments have been based upon political criteria rather than professional merit, with resultant developmental failure, not least because ANC elites regularly use their positions in party and state to further their personal material interests and to block attempts to probe and prosecute corruption. The fundamental argument is that, in line certainly with numerous other ruling elites, those who run the ANC’s partystate seek to make it largely unaccountable (as explored in detail by Dale McKinley in his analysis of ‘secrecy and power’, below).
Roux and others point out how the initial Constitutional Court was composed of judges who were in philosophical agreement with the ANC’s culture of human rights, which in many ways was way ahead of the values of the party’s large constituency – indeed, it was left to the Court to rule that capital punishment was unconstitutional. Yet there are legitimate fears that as time wears on, and as political challenges to its dominance mount, the ANC elite is becoming increasingly willing to pander to illiberal aspects of its culturally conservative political base with, for instance, its encouragement of patriarchal practices and values which challenge the right to nondiscrimination on the grounds of sexual orientation enshrined in the Constitution (see Zethu Matebeni, below). Even more worrying is the alliance the ANC has struck up with traditional leaders, which at present is evidenced by attempts by the party leadership to enact a bill which many lawyers, civil society activists, academics and others fear will systematically deprive millions of rural dwellers who live in the former homelands, and are thereby subject to chiefly rule, of their rights as citizens under the Constitution (explored here by Aninka Claassens and Boitumelo Matlala). In this, and other affairs where the government seems intent on avoiding or circumventing constitutional requirements for popular consultation (for which see John Clarke’s chapter on how local Pondo interests stand in danger of being overridden by a deal struck between mining interests and political elites), civil society as much as opposition political parties have a major role to play in using the Constitution to hold the government to account. To succeed they will need a Constitutional Court which continues to protect its independence through a shrewd balancing of the often conflicting pressures of politics and the law. It looms as a concern, therefore, that under the Zuma presidency there have been apparent efforts to leverage the executive’s ability to influence recruitment to the judiciary, usually justified by reference to the need for (demographic) ‘transformation’. The independence of the judiciary remains at the heart of South Africa’s consolidation of constitutional democracy.
THE SOCIAL AND ECONOMIC COMPACT
The political settlement of 1994 was underwritten by agreements concluded between the incoming ANC elite and large-scale capital. Successive developments (the Durban strike wave of 1973, the independence of Angola and Mozambique in 1974, the Soweto uprising of 1976, the final defeat of the Smith regime in Zimbabwe in 1980) had increasingly persuaded key elements in business that democracy in South Africa was on the way, and distanced them from an NP government which pursued a militarised strategy of reform from above and was adamant that it would not concede majority rule. Unsurprisingly, business was to be more organised than the government when, following the collapse of the Soviet Union, the then president, FW de Klerk, con Development Programme ceded the need to engage in open-ended negotiations with the ANC if a radical outcome to the liberation struggle was to be avoided.
Since the late 1970s, the more progressive and far-sighted elements of business had begun to engage in strategies which were ultimately to become formalised in ANC policies of black economic empowerment (BEE). Slowly but surely, partly in response to a growing shortage of appropriately skilled whites, partly with a political eye to the future, the large corporations began to recruit blacks into managerial positions. From the early 1980s, such moves were complemented by a succession of meetings with the ANC in exile, on occasion held in defiance of government wishes, at which personal connections were forged and in which common interest in maintaining the productive capacity of the economy were stressed. From the early 1990s, business was joined by international financial institutions in urging the ANC to abandon its liberationist commitments to socialism in favour of market-oriented policies, their persuasiveness reinforced by the ANC’s lack of experience in, and appropriately trained personnel for, running an advanced economy (see, for example, Bond 2000). Mandela’s personal and political commitment to forging racial reconciliation was to be matched
