A solid foundation but cracks are showing.
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.
Thus, the manner and limits of the exercise of public power by parliament, the cabinet and any public official stand to be tested in court for their constitutionality and lawfulness. This is an exceptionally onerous authority. Those who wield it must be beyond reproach, careful not to exceed their authority.
The Constitutional Court heard its first case in early 1995, with a very strong bench of 11 justices. Almost all of them had a very good sense of the political landscape. Mandela did more for the legitimacy of the court than its judgments when he announced on television that he recognised the court as the final arbiter of such questions. He immediately complied with its order.
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. Most of them had deep roots in the anti-apartheid struggle, and thus an impressively nuanced understanding of the challenges facing the executive, parliament and broader society.
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