ConCourt stands out as one of the few government institutions that have protected democracy
South Africa’s Constitutional Court stands out as one of the few government institutions that have protected and advanced the constitutional vision of a participatory democracy and social justice. Many other government institutions which ought to have allied themselves with the court have been weakened or have failed to deliver.
The Constitutional Court succeeded beyond expectations in establishing its political and public legitimacy in its first 15 years since it was founded in 1994. But the second half of the democratic era has been a mixed bag. It deliberately chose the constitutionality of the death penalty, a divisive issue, as its first case. It produced an astonishingly strong set of judgments, both collective and separate, in unanimously holding that the Bill of Rights outlawed the death penalty.
On the other hand, the court recognised sensibly that there were financial and other resource limits which prevented the complete provision of socio-economic rights to health, housing and water. Some argued that the court had been too cautious. But most agreed that it had been true to its mandate and the wording of the bill of rights.Since 2009, the court’s record has been mixed. This period coincided with the end of the term of office of the last members of the original Constitutional Court.
The appointment of some less than stellar court justices. It’s a tough job serving on such a court. It requires enormous reserves of intelligence, stamina, wisdom, courage and political nuance. In addition, the court has come under unrelenting attack in the public domain, chiefly from those whose corrupt and unlawful conduct is threatened by criminal and civil process. Judges are prevented from mounting a defensive justification of their work: their judgments must speak for them.
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