Constitutional Court violence signals growing threat to SA’s rule of law

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JEREMY MAGGS: Violence outside the Constitutional Court in Johannesburg on Friday, with some protesters reportedly armed with pangas, forced the country’s highest court to suspend proceedings and lock down its building.

Now the organisation Freedom Under Law says this was more than just a violent protest – it was a direct attack on the rule of law and constitutional democracy.

The unrest follows growing anger over immigration and a controversial asylum directive that Home Affairs has now withdrawn.

Let’s discuss this in a little more detail. I’m with Chris Oxtoby, who is a research consultant at Freedom Under Law. Chris, welcome to you.

What does Friday’s violence outside the court then tell us about the state of respect for democratic institutions in South Africa? This was a very worrying turn of events.

CHRIS OXTOBY: Well, it was very worrying. It does speak to a situation where at least a sufficient segment of society was willing to disregard the role that the court plays in our society, the respect that the court needs to command, and were willing to resort to this kind of physical intervention.

It’s very difficult to look at it any other way than an attempt to intimidate the court and an attempt to unduly influence it.

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JEREMY MAGGS: So we should be increasingly concerned, then, about growing public frustration spilling over into hostility towards the judiciary. It’s not the first time that we have seen this sentiment expressed.

CHRIS OXTOBY: No, it’s certainly not the first time we’ve seen this sentiment expressed. I should perhaps just be very clear, none of this is to suggest that the courts are above criticism and that courts’ judgments shouldn’t be subject to debate.

But there’s a big difference between having a legitimate debate and criticising the coherence of a court’s decision, to actually using violence to try and physically occupy the court building.

I think this is the particularly worrying element of the event, is that, as you say, we have seen backlashes at the court before, I’m not aware of any instance that has disrupted the court’s operation to this extent before and that really does take us into very troubling territory if the courts are interfered with in that way.

JEREMY MAGGS: In that territory, Chris, is it becoming increasingly difficult, then, to distinguish between legitimate public concern about immigration and actions that undermine the rule of law? Is the debate becoming a little more opaque, do you think?

CHRIS OXTOBY: Well, I’m not sure that it needs to be or that it would need to be. Certainly, immigration, as with most other topics of governance, are ones about which we can and should have legitimate discussion, debate.

But the extent to which we start seeing violent protest, we start seeing life and property being put at risk, I really think that goes into very different and very, very worrying territory indeed.

JEREMY MAGGS: Do you think it’s becoming more difficult to balance the constitutional rights of asylum seekers with the very real concerns that some South Africans have about immigration management and pressure on public services?

CHRIS OXTOBY: I should caveat this by saying I’m not an expert on refugee and asylum issues. My understanding is that the number of asylum seekers are not great relative to the public angst that is attached to the issue. That it’s not necessarily actually asylum seekers where the heart of this problem lies.

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As I say, I think the real danger is that concerns, which they may well be legitimate and justified concerns to have about immigration policy, but when this starts getting swept up in a very, very hostile, anti-foreigner rhetoric-infused actions, I think any nuance and subtlety in that debate gets lost very, very quickly.

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It is a concern, I think, that in that context, the courts can very quickly and very easily become a scapegoat.

But it stops us looking elsewhere and perhaps we should be asking questions about whether we have policy failures at other levels of government, that are then landing at the doors of the court, but that it becomes easy to put the blame on the courts when, as I said, perhaps we should be looking elsewhere.

JEREMY MAGGS: That’s a key observation because it tells us a lot about the relationship, then, between government policy, court decision and practical challenges of implementation, whatever the issue is these days.

CHRIS OXTOBY: Yes, absolutely. The question of practical implementation is obviously a very real one. We do flag in our statement about this issue, concerns with comments that the minister (Leon Schreiber) and the Presidency made, talking about unintended consequences of court judgments.

Of course, if court judgments are unclear and not fully thought through, then that can present its own rule of law problem.

Read: Anti-immigrant march sparks violence and mayhem in Durban CBD

But I think it’s quite instructive that some writers have picked up that in the Constitutional Court’s judgment that seems to be at the heart of this issue, the court is very scathing of how the Department of Home Affairs had been handling this issue.

So, again, are we looking in the right places when we are interrogating who has done what on this issue.

JEREMY MAGGS: Freedom Under Law also raises a very big issue about suggestions of constitutional change. How should South Africa approach debates about constitutional reform while preserving the independence of the judiciary? That debate is becoming a lot tighter.

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CHRIS OXTOBY: Yeah, there’s nothing intrinsically objectionable with the idea of amending the Constitution. We’ve done it on many occasions in the past. But I think it’s obviously a big step. It requires a supermajority in parliament.

So with a step like that, you want to make sure that you have very carefully thought through and worked out the implications.

Now, it’s not at all clear to me from the statements even coming from government on this issue, what exactly the constitutional amendment that anyone has in mind would be. It’s not clear to me that there’s a specific constitutional right that is the core of the problem here.

Again, it comes to this question of scapegoating. It’s sounds like a very intoxicating idea to say, well, we must just amend the Constitution.

But that begs many questions about, well, in what specific respect and what even is the issue that we’re trying to address exactly? Will a nebulous constitutional amendment address that?

I think, again, it’s in a similar way to comments and criticism of court judgments. It’s something that’s not illegitimate to raise it per se, but I do think one has to be quite careful and precise about what exactly it is that’s being asked for.

I’m not sure that the debate at the moment is anywhere close to that.

JEREMY MAGGS: Chris Oxtoby, thank you very much indeed, research consultant at Freedom Under Law.

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