Crisis of constitutionalism and legality

One of the features distinguishing post-Polokwane political developments has been the attack on constitutionalism and legality.  The birth of the Zuma presidency, itself, lies in an aborted prosecution, where he faced hundreds of corruption charges.  A committee had been tasked with finding ways of removing the charges and illegally obtained tapes purported to provide the basis for withdrawal.  The legality of the withdrawal of charges has been challenged by top advocates, Billy Downer SC and Wim Trengove SC whose contributions are posted on this site, together with the statement of the then Acting Director of Prosecutions, Moketedi Mpshe, providing reasons for withdrawal.

This blog will try to uncover the dimensions of this crisis of legality and constitutionalism.  Immediately one can identify a crisis in policing, manifested in widespread violence and killing of innocent people.  As it happens, almost all of these are black people, replicating in this respect, the pattern of the apartheid era.

What may evoke more disquiet is that this violence is in the wake of militaristic calls on the part of leading government and policing figures, notoriously in the call to ‘shoot to kill.’  The Marikana massacre may be one dramatic example of this practice, but one of the distinguishing features of that massacre is the callous reaction of government and ANC/SACP/COSATU alliance figures.

To date, it appears that the most significant and in their eyes criminal feature of those events was the displacement of NUM by AMCU, described sometimes as being in the pay of foreign powers, or by the SACP leadership as a vigilante union.

On the one hand, this trivialises the problem of police violence.  On the other, it narrows the area of political and labour union contestation.  AMCU which has majority support in large sectors of the mining industry is delegitimised by the Minister of Mines and the SACP.  What one hopes will also happen is that many who have looked to government, ANC and SACP for political guidance will see, from such examples, that there is a short-sighted attempt to limit political losses, no matter the costs, which are to be borne by others.

I have referred to a crisis of legality and constitutionalism and of course it goes further than the issues referred to here, obviously including widespread corruption and high tolerance of malpractices.  Further posts will aim to address these and related issues

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