The Economist (2022-02-26) Riva

The Economist February 26th 2022 45

Middle East & Africa

Anotherinstitutionattacked

Judging judges

T

here arefew more poignant locations
for a country’s supreme judicial body
than that of South Africa’s Constitutional
Court, in central Johannesburg. The build-
ing lies within the walls of the Old Fort pri-
son complex where, during the colonial era
and under apartheid, black inmates were
given less food, fewer blankets and more
abuse than white ones. Many who strug-
gled against white rule were held there, in-
cluding Mahatma Gandhi, Archbishop
Desmond Tutu (briefly), Albert Luthuli and
Nelson Mandela. The last three all won the
Nobel peace prize; not many countries can
boast more individual laureates than the
Old Fort complex can.
South Africa’s courts have generally
honoured their legacy. The constitution, a
blend of liberal ideas such as the separa-
tion of powers, and progressive rights to
social services, has shielded the country
from the worst excesses of power. Yet as
President Cyril Ramaphosa prepares to ap-
point a new Chief Justice, the judiciary is
under unprecedented attack from the ene-

mies of constitutional democracy.

There has long been tension between

the courts and the other branches of gov-

ernment. Thabo Mbeki, president from

1999 to 2008, believed a crank theory that

the human immunodeficiency virus (hiv)

does not cause aids. In 2002, much to his

chagrin, the Constitutional Court told his

government to provide South Africans

with anti-hivdrugs.

The relationship deteriorated further

under the presidency of Jacob Zuma (2009-

18). In 2015 a judge ordered that the govern-

ment must bar Omar al-Bashir from leav-

ing South Africa after the Sudanese dicta-

tor, who was wanted by the International

Criminal Court, flew in for a summit. The

Zuma administration disobeyed him. The

next year the Constitutional Court found

that the president and parliament had

failed to uphold the constitution by ignor-

ing findings of corruption against Mr Zu-

ma by Thuli Madonsela, then the country’s

Public Protector, a legal ombudsman.

Such decisions riled Mr Zuma and oth-

ers in his government. The then president

told tribal chiefs that they would be better

off resolving disputes “in an African way”

(without elaborating on what this might

mean), instead of through the courts

which “deal with cold facts”. Blade Nzi-

mande, a minister, warned of “judicial dic-

tatorship”. Gwede Mantashe, another min-

ister, reportedly called judges “counter-

revolutionary forces”.

Yet 2021 “was arguably the court’s most

turbulent year”, argues Pierre de Vos of the

University of Cape Town (uct). Mr Zuma

accused the highest court of being “exactly

like the apartheid government” by order-

ing him to appear before an inquiry into

corruption during his reign. He was briefly

imprisoned for contempt of court after he

ignored the order. Jessie Duarte, an ally of

Mr Zuma, said the inquiry was “an on-

slaught on the people”. Lindiwe Sisulu, a

cabinet minister, recently called some

black judges “mentally colonised Africans”

and “house negroes”.

JOHANNESBURG
The enemies of South African democracy have the judiciary in their sights

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