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Justice before expedience. Will SA survive as a constitutional democracy?



I have my grandfather’s copy of the Pentateuch and Haftorah, edited by Rabbi JH Hertz, passed down to my father and now to me. My copy is a third edition, published in 1950, though it contains the “additional notes” written in 1936. In these notes, Hertz seeks to draw out and make explicit Jewish principles of law and politics. They were written at a time of great anxiety, a few years before the Shoah.

In a section on “the supremacy of justice in the state”, Hertz insists that in the Torah, “biblical regulations concerning justice precede those of the appointment of the king”. He places “precede” in italics for emphasis and explains “justice is to be above the monarchy” or the state, an idea without precedent in the ancient world.

In other words, the state may not act against the principles of natural law or justice. It was precisely this principle that was under threat in the 1930s. Worse, this principle was being turned upside down by the Nazis, for whom “justice must be guided solely by state interests”.

The “biblical theory of government” as discussed in Deuteronomy and Leviticus, we are told, finds expression in and through a “political constitution” that contains the “spirit and aspirations of the community” and “duties” of the ruler. It’s these principles that have framed the modern theory of government, especially since the end of World War II, though earlier in some countries.

It’s useful to think about these remarks in relation to our times, for they, too, are a period of great anxiety in which the foundations of modern government are in jeopardy.

In the United States, a then acting president, facing electoral defeat, encouraged an insurrection targeting the seat of democratic government. He later claimed that the election, which he lost, was rigged. Recently, and unbelievably, he has called for the setting aside of the US Constitution.

In Israel, the most right-wing government ever threatens to come to power. In the name of “religious Zionism”, it wants to reduce justice to what’s in the interests of the state. “Religious Zionism”, whose proper name is fascism, is a politics based on weak halachic grounds. We read only recently in shul the parsha “Lech Lecha”. There it’s written that Canaan belongs to the descendants of the seed of Abraham, including Isaac, but also Ishmael?

Closer to home, we’ve come through a devastating period of “state capture”. As my colleagues and I argued in a 2017 report, The Betrayal of the Promise, South Africa underwent a “silent coup” in which political power was displaced away from parliament and from constitutional structures into shadowy networks of politicians and businesses, including former President Jacob Zuma, his family, his political allies, and the notorious Gupta brothers. Many of these claims have been substantiated recently by the findings of the Zondo Commission.

It’s worth noting how close we were to a state of emergency. The commission found evidence, for example, that State Security had provided for groups of men to undergo military training in Russia and China and then deployed them as “bodyguards” to Zuma and other politicians. In other words, these politicians had been supplied with their own private militias.

In my contribution to Ferial Haffajee’s new book, The Days of Zondo, I argued that state capture mustn’t be reduced simply to the greed and corruption of select politicians and those in business. Rather, it had a politics, which I discuss in relation to developments in the African National Congress (ANC) from about 2000. In particular, two ideological elements are of special importance.

In the first case, from about 2015/2016 the ANC under Jacob Zuma became increasingly paranoid that the National Democratic Revolution was facing a “counter-revolution”.

In second place, the leaders of the ANC didn’t regard the organisation simply as another political party amongst others. They believed that it was the authentic representative of the South African nation. Hence, if the ANC was at risk, then the nation was at risk too.

Taken together, these two elements justified a more brazen, increasingly authoritarian and criminal politics in South Africa. It’s not necessary to recount the effects of state capture on South African institutions. We live the consequences every day in the form of ongoing electricity blackouts, water shortages, a weak police service, and a perpetually poorly performing economy.

While in large parts of the world, left and right governments, often in the name of popular sovereignty, place justice secondary to the interests of the state, in South Africa there are signs, admittedly tentative ones, of renewed support for constitutionalism.

In the first instance, voters, especially ANC voters, have been demonstrating that the party doesn’t have a natural right to their ballots. Secondly, “civil society” voices have recently been given a boost by the Zondo Commission, which argued that the conflation of party and state is unconstitutional. It also has a dire effect on how administrations perform. Finally, and most importantly, key state institutions are beginning to assert their autonomy.

One of the Zondo Commission’s most damning findings on parliament was that in spite of there being evidence of executive malfeasance in the public domain since 2011, the institution did not investigate it. It failed, that is, to hold the executive to account.

Ironically enough, the current Phala Phala crisis in South Africa arises precisely because parliament, for the first time, did its job. It investigated a sitting president on the basis of evidence in the public domain.

We wish it had discharged its role earlier, at the time of arms-deal corruption, or Thabo Mbeki’s AIDS denialism, or during the period of state capture. It’s ironic, furthermore, that South Africa’s most constitutionally minded president is a victim of this new constitutional assertiveness.

Rabbi Hertz might have said that South Africa is beginning once again to put justice above political convenience or expediency.

  • Ivor Chipkin is the director of the New South Institute (formerly GAPP). He was one of the lead authors of the “Betrayal of the Promise” report.

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