OPINION: Dominated by lawfare: The failing politics of South Africa

The symbiotic nexus between politics and law in South Africa contracts at the expense of the citizens and democracy, significantly when the law and its practices undermine politics and its practitioners.

Politicians in South Africa are failing to resolve issues which is what I consider shaping South African politics. Attempting to settle their differences through the court system has become somewhat fashionable for South African politicians who cannot find common ground. There is no doubt that in South Africa, all must be equal before the law and have access to courts, but isn’t it about time we ask if the courts are not being abused by the inability of politics and politicians to resolve political issues?

Cyril Ramaphosa, the sitting President of South Africa, promised to provide Parliament and South Africans with his take on the Zondo Commission’s report by June 2022. Some 1230 days later, the commission wrapped up its work and made recommendations after spending over R1 billion in taxpayers money. President Ramaphosa now has to indicate how he plans to implement these recommendations. After the President’s speech, lawfare can be expected.

The South African political landscape is dominated by lawfare, if not shaped by it. Parliaments are noble houses of debates and disagreements, but most importantly, consensus building. I use “disagreements” here to suggest that a parliament is a place where fierce debates are expected, a playground for politicians as they seek to “find one another” for the benefit of the people they represent, i.e., the citizens of the country.

Above parliament being there for debates, it is ultimately a platform for political actors to hold other political actors accountable. These could be lawmakers holding other lawmakers to account, or as it is usually done, lawmakers holding the executive to account. So far, it is safe to say “politicians” are entrusted with the state’s legislative arm to keep those who exercise power accountable. It is surprising to find “political disagreements” being heavily ventilated in our courts, pushing citizenry issues to the periphery for “urgent”, ostensibly about to explode the political problems.

In his 2020 published book titled Trials of the State: Law and the Decline of Politics, the former United Kingdom Supreme Court Justice Jonathan Sumption laments the decline of political authority in politics over law. It must be unsettling that a retired judge complains about the heavy hand of law and lawyers in the life of the politics of states. This on its own is telling. While most of his analysis focused heavily on the events in the US and the UK, after all, he is the former judge in the UK; it would be remiss to deny the thrust of his analysis. Simply put, Jonathan Sumption is discouraged that law, not political authority seems to be managing state affairs. In our version, lawyers and judges, and not political accountability, dictate the state’s affairs.

South Africa provides an excellent example of what Jonathan Sumption cautions us about. One can start on a macro level and ask how many court cases former president Jacob Zuma endured during his presidency? Here, one can look at how parliament and the courts managed the Nkandla saga. In Parliament, perhaps a cosmetic political accountability was practiced, but it took the courts to force the former president to “pay back the money”. Indeed, politics failed to hold the former president accountable. On a micro-level, on the same issue, the African National Congress (ANC) and its National Executive Committee (NEC) could not produce similar results as the courts.

The election of Cyril Ramaphosa into the presidency of both the ANC in 2017 and subsequently the country, starting in 2018, was genuinely met with jubilations. Hope found a home in our chest because “hope springs eternal in the human’s chest”. But how many times has the incumbent in his truncated presidential career been to court to defend himself, mainly against the suspended (PP) Public Protector Advocate Busisiwe Mkhwebane?

Although, in the final analysis, the President emerged victorious in the eyes of the courts, we must ask if the courts are always going to be the go-to when bureaucrats and politicians cannot resolve simple matters? Are the courts not being used to settle vindictive, personal and professional disagreements between “political actors”? As things stand, the suspended PP threatens to petition the African Court of Human Rights against South African courts, especially the Constitutional Court and Parliament.

The first of the latter two are blamed for holding that the PP, as a Chapter 9 institution, can be held to account by Parliament, while Parliament is blamed simply for seeking to have the PP to account. We must ask and wonder if there is some irritation disguised as “democratic rights” in the South African body politics about being held accountable?

What we have in South Africa now, lawyers and judges, are becoming more popular than politicians because politicians are failing to manage state affairs. Switching TV channels in South Africa, all one sees is lawyers in court and judges deciding political matters. If it is not SC Dali Mpofu forcing the former president to “pay back the money” it is SC Tembeka Ngcukaitobi and SC Wim Trengove representing the ANC against Ace Magashule.

It should not be denied that the ANC, through its step aside resolution, mimics attempts to hold politicians accountable to bring “hygiene in politics”. We see this in the forced stepping aside of Ace Magashule, the suspended secretary-general of the ANC. What do we then say about Magashule’s unsuccessful legal attempts to reverse his suspension? Is this a man ventilating his rights or, again, the failure of politicians to accept that some issues are political and must be resolved as such?

The courts also have some introspection to undergo. For example, whether Omar Hassan Ahmad al-Bashir is to be arrested on international charges is much more a foreign policy matter than an immediate concern of South African law. The opinion of DIRCO should be sufficient politically. But then one is met with section 233 of the Constitution, which reads: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law”. There is overregulation of political conduct in South Africa; the gap between politics and law is becoming non-existent.

In 1861, during his inaugural speech, the former US president Abraham Lincoln was quoted as saying: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal”. As old as the quote is, it is remarkable its veracity finds relevance in contemporary times in which politicians in South Africa have delegated their responsibilities to the courts.

Author: Mancha J Sekgololo: PhD Candidate, University of Johannesburg. Research Associate: 4IR and Digital Policy Research Unit (4DPRU), Politics and International Relations, Faculty of Humanities