JAMES Baldwin once described the US as "the most desperately schizophrenic of republics". I wonder what he would have made of the presence of so many of the good and the great (and the not so great) of our political elite at yesterday’s funeral of former chief justice Arthur Chaskalson? Prominent among the mourners were those who have spent the past few years digging tunnels under the constitutional foundations of our own republic, whose creation stands as a monument to Chaskalson’s legal creativity and political fealty.
The fall of giants this past week (Chaskalson’s death came within days of Jakes Gerwel’s) has led to an outpouring of praise and nostalgic sentiment. With the rule of law under stress, it is comforting to look back at a seeming golden era of constitution-building and its architects, and lament the absence of such figures today.
But the many obituarists of Chaskalson, while correctly underlining his legal pre-eminence, his innate modesty and his abiding commitment to social justice, have diminished his legacy by ignoring his ability to reconcile two seeming irreconcilable things: party loyalty and judicial independence.
Only a statement by the South African Communist Party (SACP) drew attention to the fact that, in the 1960s and 1970s, Chaskalson was "an underground member of the SACP" and, according to it, also served as the party emissary at the constitutional negotiations in the 1990s. In fact, Chaskalson’s official role at the negotiations was as chairman of the "technical committee" rather than as a party negotiator, although his nomination was at the behest of the African National Congress and the SACP.
Indeed, at the multiparty negotiations in Kempton Park, I recall a rather tense moment when he presented a draft that said the draft bill of rights would be interpreted in a manner consistent with a democracy "governed by the principle of equality". When I pointed out that without further qualification, this would simply flatten out future individual claims based on liberty and could lead to many totalitarian temptations in future, Chaskalson was none too pleased. But, after some wrangling, the point was conceded and we managed to insert "freedom" alongside "equality" into the limitations’ clause.
But how was this formidable partisan able to rise to the challenge of interpreting the bill of rights, in his role as founding president of the Constitutional Court, in a way that "defended the constitution, protected human rights … gained the respect of all sections of the community", which was how Chaskalson described his task after his appointment in 1994? I suppose the answer lay not in denying bias and old loyalties but, to an extent, in transcending them.
Other fine legal minds have juggled these roles: US Chief Justice John Roberts, for example had loyally served in the White Houses of Republican presidents Ronald Reagan and the elder George Bush. Despite this background and bias, this year he upheld the bulk of the most progressive Democratic health legislation in a generation, "Obamacare", as it is nicknamed.
During his tenure, Chaskalson displayed considerable deference toward the ruling party when some of its key political interests were at stake (green-lighting floor-crossing, disallowing old ID books for the 1999 general election and refusing to implement proportionality in the allocation of seats for the executive mayoral committee of Johannesburg are three examples). Yet, when it came to protecting citizens’ rights broadly, Chaskalson had no problem finding against the government, on issues as wide-ranging as the provision of emergency housing for the homeless to the hugely consequential Treatment Action Campaign case of 2002, which arrested the madness which then passed for state HIV-AIDS policy.
On the subject of conflict of constitutional roles, spare a thought for Helen Zille. As the national opposition leader, she is at the forefront of defending our constitution as a sort of mighty oak tree that needs to be nurtured on the rather stony soil in which it was planted nearly two decades ago.
Yet, in her other role, as premier of the Western Cape, she must find its protection about as useful as a modest bonsai tree.
With the Congress of the South African Trade Unions threatening to unleash mayhem on the province’s farms, she is reduced to writing letters to the national police commissioner and requesting the president to send in the army. Unlike even a small-town mayor in the US, our constitution provides no original policing powers to the provinces and their leadership.
Our constitution is flawed and reflects the sum, and strength, of the political forces present at its creation. But it certainly beats the alternatives — of not having one at all or hollowing out its rights and entitlements. But it needs constant nurturing by fine minds and independent intellects.
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