How populism has come to see the constitution as an obstacle to freedom

President Thabo Mbeki’s sacking of Jacob Zuma as his deputy in 2005 proved to be his undoing.

Once out of a job, Zuma took the time to galvanise his base, to cultivate his “man-of-the-people” image, exploiting internal discontent about the ANC’s neoliberal economic policy direction under Mbeki and becoming the perfect victim, citing his ousting from power as a response by the elites to his growing popularity, which threatened their interests. They were trying to suppress him.

Mbeki, ever so intellectual and cerebral, cut an out-of-touch and aloof figure in comparison: a man of some people. His own reasoning was that Zuma had been found to have an improper relationship with Schabir Shaik, comrade, businessman and, subsequently, criminal convicted of corruption.

Zuma maintained that he was the victim of prosecutorial misconduct; it was all dirty politics. Shaik’s conviction, by the way, was the fruit of an investigation by the Directorate of Special Operations, the Scorpions. Although Zuma was not an accused in that matter, his shadow maintained an omnipresence throughout the judgment. Perhaps “shadow” is not the correct word. Zuma is unlike Voldemort, who is so dangerous that he cannot be named. Zuma is very much named. He has, shall we say, a real presence, in the Catholic sense.

No surprises, then, that after a bruising elective conference in Polokwane, Mbeki was forced to resign. Kgalema Motlanthe was elected to replace him and be Zuma’s place holder until after the 2009 elections. One of the first things Motlanthe did was to disband the Scorpions.

Theunis Roux identifies the leadership battle of 2007 as the first of at least two populist waves in contemporary South African politics. Buoyed by his victory, Zuma set to remake the state in his own image, leveraging the state’s vast procurement and BEE machinery to create a sprawling network of patronage to reward his backers. A Lannister always pays his debts.

It was during this time that ANC membership — an alliance with Zuma specifically — was seen as a ticket to the big time. The ANC in this period also reported a membership of about 1-million people. With the Scorpions gone, very little stood in Zuma’s way. The National Prosecuting Authority experienced a brain drain from which it is still recovering. It didn’t have a permanent head for more than two years at any time during Zuma’s presidential tenure, by my count.

Meanwhile, all was not well at Luthuli House, the ANC’s headquarters. The ANC Youth League and its firebrand leader, Julius Malema, Zuma’s one-time ally, were proving too much for the latter. So off they went.

Freshly expelled, Malema set up his Marxist-Leninist-Fanonian outfit with literal outfits to match. So began the second wave of populism. The EFF fully embraces its populist brand. Its use of populist rhetoric is liberal, its public office-bearers don red overalls and domestic worker uniforms and identify themselves variously with “the workers”, “the people” or “the masses” who have, according to the EFF, been abandoned by the ANC, a party that now serves only elitist interests. The EFF’s ideological orientation can be dizzying, but, in most aspects, it is to the left of the ANC.

In recent years, the EFF’s popularity especially among young voters has raised the spectre of electoral creep for the ANC. In response, the governing party has had to adopt the same rhetoric to counter the EFF’s influence. Most notably, these views have been espoused by the radical economic transformation (RET) faction, which has been able to sway the ANC to adopt EFF-adjacent policies such as land expropriation without compensation and nationalisation of the Reserve Bank.

Even without the electoral pull of the DA, the EFF has been able to shift internal ANC dynamics towards left-wing populism, owing in no small part to the outsize media attention it receives, and it has succeeded in fully influencing government policy. Under Mandela or even Mbeki, this would have been unthinkable.

So how did we get here? As with most things, it’s the constitution.

Roux’s account of why SA has been so ripe for populist politics strikes me as a self-evident truth. The constitution contains broad, progressive, left-leaning commitments, such as rights to education, housing, water, food, social security and health, and guarantees for equality and human dignity for all. The sheer weight of these commitments would be enough of a struggle to honour for a well-to-do technocratic government.

The ANC stood no chance. Inheriting a bankrupt state at the end of apartheid, it was always going to have difficulties. But over the past three decades, the situation has become increasingly desperate. Perhaps the promise of the constitution was simply too great. As a result, the slow pace of socioeconomic transformation that precipitated the country’s present conditions has been seen not only as a failure of ANC-led policy but also as a failure of the constitution to deliver on its promises.

The constitution has thus become the primary target for populist attack. It is branded as a document that serves only to preserve the status quo ante and becomes the rightful object of “the people’s” anger about their material conditions. Add to this strained racial relations and the trust deficit between South Africans and state institutions, and all the necessary conditions for the cultivation of a populist alternative are present.

Populism trades on the broken promises of democracy. Having chosen constitutional supremacy, we put courts at the centre of the functioning of our democracy. Everything contained in the Bill of Rights is justiciable by the courts against the state. But the constitution being a legal instrument with all the attendant caveats, procedural and interpretational restrictions, and litigation being what it is, when courts — in the populist imagination, at least — do not decide cases in the “right” way, they open themselves up to populist abuse.

On the other hand, when courts are called upon to restrain or correct the unlawful exercise of public power, they are also accused of thwarting the will of the people and, in that sense, are seen as a great challenge to the full and unrestricted exercise of political power by populists.

The Constitutional Court, in particular, with exclusive jurisdiction over some questions of law concerning the powers of parliament and the president, plays an outsize role in public life. In the now long-forgotten years of state capture, the courts were hailed as the last bulwark of democracy against the threat of Zuma’s project to collapse the state. It seems the public mood has changed more recently.

The proliferation of lawfare has led to the courts’ greater vulnerability to populist attack, which does not seem to be letting up. Given his chequered history with the law, Zuma has never been particularly fond of judges. Shortly after taking office, he accused them of behaving like gods.

At the turn of the last decade, his government initiated a review of the powers and jurisprudence of the Supreme Court of Appeal and the Constitutional Court. This review, instead of showing that the courts were obstructing transformation, actually proved that the problem was the implementation of court orders by the executive.

After Zuma’s replacement as ANC president by Cyril Ramaphosa — an avowed, if tepid, constitutionalist — the courts came to be viewed with suspicion, in particular, by the RET faction and the EFF, who have both publicly attacked the judiciary and the integrity of the judicial process.

As Justice Raymond Zondo geared up to release his reports, the attacks intensified, presumably out of fear of prosecution. Zuma, for instance, accused Ramaphosa of paying off judges in exchange for court victories. The EFF followed suit, saying that some judges were “on the payroll of the white monopoly capitalist establishment”.