Two-One in People vs Government
An intense week for constitution watchers. Formal agreement was reached in Iraq on a constitution that declares that Islam will be "a source" and not "the source" of Iraqi law. This development is hopefully like our 1993 national commitment to listed constitutional principles. It should make tolerance a constitutional obligation for the successive Iraqi governments that follow the United States' withdrawal from the country. Ironically in the same week US President George Bush said he would not seek to amend the US constitution to decree that marriage is a union only between a man and a woman. This, if passed, would be the first amendment in US history to restrict rather to expand rights. It would reduce at home the personal freedom that the US so rightly wants in Iraq.
In South Africa three major judgements were delivered in cases in which courts were asked to reverse important government policy. Two went against the government and one against its opponent. Separation of powers is alive and well and living in South Africa.
On Tuesday the constitutional court, with two judges, Sandile Ngcobo and Tole Madala dissenting, compelled the government to arrange for prisoners incarcerated without the option of a fine to vote. Chief Justice Arthur Chaskalson found the government's attempted limitation of the right to vote was unjustified in a free and democratic society. He ordered the state to pay all the costs of the applicant, the National Institute for Rehabilitation and Reintegration of Criminals (Nicro).
The court stressed that South Africans' hard-won right to vote could not be removed without very strong reasons.
The government will have to think much more constitutionally if it wants, for the third time, to try to disenfranchise certain offenders.
Judge Yvonne Mokgoro on Thursday delivered a unanimous judgement in which the court supported the contention of counsel for Louis Khosa that immigrants granted permanent residence qualified for social grants. The judgement rejected government objections that the move would have dire financial consequences - grants would increase in three years from R16 billion to R45 billion for this and other reasons. Mokgoro accepted that there was concern that non-citizens would become a burden on the country "but the exclusion of all non-citizens who are destitute, irrespective of their immigration status, fails to distinguish between those who have become part of our society and have made their homes here and those who have not."
Zola Skweyiya, the social development minister, did not oppose the Khosa claim.
By contrast, and also on Thursday, Judge André Blignaut of the Cape high court, with Judge Ntlupheko Yakiso consenting, dismissed an application by Economist Allied Against Re-armament (Ecaar) and Terry Crawford-Brown, who wanted the court to review and set aside the January 2000 decision of Trevor Manuel, the minister of finance, to sign the foreign loan agreement for the arms deal.
Blignaut refused to declare the arms purchasing programme null and void and imposed all costs in the review application on Ecaar and Crawford-Browne, though he ordered the parties to pay for their own costs in a discovery application in which a Cape high court earlier ordered the government to disclose some documents to Ecaar.
On Friday Manuel was reported a saying that he welcomed the decision, that the case had been "vexatious", that Crawford-Browne and Ecaar had better have deep pockets and that he "looked forward to being there when costs are recovered".
This tone is unlikely to intimidate Crawford-Browne, who is a kind of South African Ralph Nader - a fiercely determined activist.
Nicro challenged the constitutionality and the rationality of the law of a particular piece of legislation and won and Khosa challenged a policy as discriminatory and won. Ecaar, in a case that is legally different, sought to have a government contract signed by a minister declared null and void because of alleged financial, economic and strategic irrationality and because of procedural irregularities.
Nicro and Khosa won in the constitutional court, against which the government may not appeal. Ecaar and Crawford-Browne lost in the high court and they may apply to appeal to the supreme court of appeals to the constitutional court.
It may be felt that Ecaar lost its case mainly because the arms deal commitment by government is so immense and, as Manuel said on Friday : "If the court had upheld [the application] it would have had profound implications on the ability of the government lawfully to contract."
But the huge cost that will be consequent on the Mokgoro decision did not deflect the constitutional court from ruling as it did.
And Blignaut actually found that Ecaar attacked the wrong decision and the wrong person. He wrote : "The real thrust of applicants' complaint in this matter is that massive funds have been committed by the government to the acquisition of arms which this country does not need whereas the funds should have been used for poverty alleviation.
"That being so, applicants' attack should have focused on the real and effective decision to get these arms, namely that of cabinet... In applicants' notice of motion there is an alternative prayer attacking the cabinet's decision but this is only a consequential attack, dependant upon the invalidity of the finance minister's decision being established. This approach is, with respect, putting the cart before the horse.
"Applicants' wrong strategy is not simply a procedural matter. The merits of the cabinet decision as such, the reasons for the cabinet decision and all the documents that were before the cabinet were not properly analysed at all in the present review application. The cabinet decision must accordingly be accepted as having been a valid decision. Once that is accepted the ratio for applicants' attack on the finance minister's decision falls away."
But it seems to me that the documents before the court do in fact help the country to assess the wisdom of the cabinet's decision.
Rationality in a constitutional court case and rationality in the world itself may be two different things. Blignaut quotes the constitutional court's comment in the Bel Porto case : "The fact that there may be more than one rational way of dealing with a particular problem does not make the choice of one rather than the others an irrational decision. The making of such choices is within the domain of the executive. Courts cannot interfere with rational decisions of the executive that have been made lawfully, on the grounds that they consider that a different decision would have been preferable."
Blignaut takes things further : "The question, when rationality is the yardstick, is whether the decision is so rational that no rational person would have taken it. By mainly focusing on the warnings to cabinet, Ecaar has not established such irrationality in this case. I am accordingly of the view that there is no merit in the review."
The county may well expect another, perhaps better directed attack on the arms deal. It is also possible that the third tranche of the deal may be reconsidered by the government, as has been called for by the Democratic Alliance.
Whatever happens, punitive damages imposed on Crawford-Browne would be more than unfortunate. He has done and is doing the country an important service. Without him we would know much less about our government's biggest and most questionable expenditure.
With acknowledgements to Rob Amato and the Sunday Independent.