‘The ruling is Roe, but the crisis is democracy.”

Alexandria Ocasio-Cortez said it best in all the noise and fury that followed the US Supreme Court (Scotus) decision to overturn Roe v Wade, the 1973 precedent that protected a woman’s right to choose.  

It all seems rather surreal, like something out of The Handmaid’s Tale. Welcome back to the 1950s and women’s subjugation. Welcome to the United States of America 2022. 

Since the draft judgment of Justice Samuel Alito was leaked a few weeks ago, progressive Americans were steeling themselves for the actual moment when the judgment was handed down. The moment of regression still brought disbelief. 

The Scotus has now become a political tool in the hands of conservative judges like Justice Clarence Thomas, a man who has been shrouded in controversy ever since the allegations of sexual harassment were made against him by Anita Hill. His wife, Ginny Thomas, seems to have played an outsized role in the 6 January 2021 insurrection. Then there are the Trump appointees, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch. 

While many breathed a sigh of relief when Donald Trump exited the scene in 2020, his 2016 election has had consequences that will reverberate for decades. His toxic influence on the body politic is no longer the festering sore but the oozing and gaping wound. And while the Biden presidency seems like a brief repose after four years of madness, what comes next?

The crisis of democracy in the US did not happen overnight; its causes are many and complex. 

As norm-breaking as Trump and his presidency were, Trump himself was a symptom of a broken political system, not a cause. 

The Trump presidency seems a long way off from Barack Obama’s repeated declaration that there “are no red states or blue states, just the United States of America!” Now, the very idea of America is under threat in these times of war, disease and unease across the world. 

Recently in the Financial Times, Ed Luce reviewed a series of books which all ask the same question in a different way: “Is America headed for civil war?” As Luce concedes, the concept of it sounds “alarmist” in 2022, but he reminds us of Voltaire’s words: “Those who can make you believe absurdities can make you commit atrocities.”

None of the books reviewed offers easy solutions against the erosion of America’s democracy, as Luce goes on to say: 

“Their remedies – find ways of making multi-ethnic democracy work, get money out of politics, teach civics to American children – have the air of wishful afterthoughts, rather than serious game plans.”

And while we in South Africa can be grateful for a progressive Constitutional Court, which has a proud record of protecting fundamental rights, the decision to overturn Roe shows us that rights are won through struggle and that the fight for human rights and democracy is intergenerational.

And as Obama said in his final speech to the UN:

“It turns out building accountable institutions is hard work – the work of generations. The gains are often fragile. Sometimes we take one step forward and then two steps back. So, those of us who believe in democracy, we need to speak out forcefully, because both the facts and history, I believe, are on our side. That doesn’t mean democracies are without flaws. It does mean that the cure for what ails our democracies is greater engagement by our citizens.”

Here at home we have our own peculiar set of challenges to constitutional democracy. Rhodes University academic Anthea Garman says: “South Africa is going through a moment of quite powerful rupture. This rupture is not so much with the apartheid of colonial past, as much as with the immediate democratic past which has failed to deliver on its promises of equality for all and which has its own lack of credible rupture with the apartheid past.”

Our challenges are on display daily – the fact that we are without power for several hours a day is a painful reminder of a state stripped bare by looting. 

Against this precarious backdrop, this past week, Minister of Tourism Lindiwe Sisulu again launched an attack on the Constitution and the judiciary. Amid the anticipation of the final Zondo Report on State Capture, it went almost unnoticed.

It is not the first time Sisulu has attacked the judiciary. In January she called black judges “house negroes”, which unleashed a storm – but not one big enough for President Cyril Ramaphosa to fire her. But then again, Ramaphosa has been consistent in his presidency about only one thing: acting in the best interests of the ANC, as we have also seen in relation to the Phala Phala scandal in which he is engulfed. There are many other examples, of course. 

We understand the measure of opportunistic politicians like Sisulu who seek to position themselves for higher office and whose words are music to the ears of those who seek to bypass the accountability a constitutional democracy demands. Her words are in service of the corrupt factional ANC politics and should give us pause for thought and not go unchallenged.

Read in Daily Maverick: “Radical white evangelical fundamentalists have taken control of the US Supreme Court”

The courts have become inconvenient for the corrupt careerists within the ANC. Similarly, Jacob Zuma, facing multiple allegations of corruption, has, together with his band of unsavoury lawyers, sought to denigrate Chief Justice Raymond Zondo and the judiciary. 

They are self-serving and will stop at nothing to tear down the edifice of our democracy. We had a taste of that during July 2021. 

To compound matters, while the President was trying to fix his waning political currency at the G7, his minister of home affairs launched an attack on civil society organisation, the Helen Suzman Foundation, for bringing litigation regarding the Zimbabwe permit matter.

Home Affairs Minister Aaron Motsoaledi’s statement attacking civil society is petty, paranoid and insecure. It is the sign of a government that has lost its way and whose only weapon is attack. Of course, if the President had any authority or spine he would stand up to this dangerous rhetoric from within his cabinet, fire Sisulu and ask Motsoaledi to retract the statement or be fired. But this will not happen. 

South Africa needs to move beyond the venal politics of the ANC towards shaping a democracy that has our Constitution at its heart. The more immediate lesson coming out of the overturning of Roe is how important judicial appointments are to a proper functioning democracy undergirded by the rule of law.

It is for this reason too that the work of the Judicial Service Commission (JSC), now under leadership of a new Chief Justice, deserves our intense scrutiny. 

For as has been repeatedly seen in the past decade in South Africa, it has been the judiciary that has held the line during a period where all other institutions were falling apart. 

So, who is appointed to the Bench matters.

It is for this reason that the continued presence of Judge President John Hlophe in the Western Cape division is so abhorrent. A full bench of the Gauteng High Court confirmed the JSC finding of gross misconduct against him. Hlophe is also involved in a disgraceful and long-running saga with deputy JP Patricia Goliath.

Hlophe has now been granted leave to appeal against the judgment by a full bench of the Gauteng High Court, handed down on 22 June 2022, which confirmed the “lack of merit in (Judge Hlophe’s) application”, and leave to appeal was granted on the basis that, “it is plain that the case has raised matters of significant public importance. The controversy embraces both the obvious and several nuanced issues of critical significance to the administration of justice. These include the integrity of the judiciary as a whole and the norms by which it falls to be held accountable and the proper functioning of the Judicial Service Commission.”

The full bench also found that the case raised “discrete issues of public importance that will have an effect on future matters”.

In terms of s177 (3) of the Constitution, the JSC has the power to recommend to the President that a judge be suspended if he/she has been found guilty of misconduct. 

It is way past time that Judge Hlophe be suspended. It would also be entirely in line with the JSC’s finding against Justice Mushtak Parker who was suspended after a finding of gross misconduct against him.

For as long as Judge Hlophe continues to exercise his powers and duties as judge president of a division of the high court, it undermines the administration of justice and the rule of law in that division. It is also a shameful reflection on the judiciary that someone found guilty of gross misconduct should continue to serve as judge president.

When Arthur Chaskalson became the first president of the Constitutional court in 1994, Madiba described him as a man of “measureless integrity”. Such integrity has to form the very basis of the judicial system. It is also fundamental to the functioning of the judiciary and the trust citizens place in our courts that politicisation is minimal and that action is taken against rogue judges speedily. 

Will the “new-look” JSC muster the courage and recommend suspension of Hlophe, or will it allow the untenable situation in the Western Cape division to persist? We can only hope for sanity to eventually prevail and for the JSC itself to fulfil its constitutional obligation despite Hlophe’s pending appeal. 

When Madiba inaugurated our first Constitutional Court he said these profound words: “Today I rise not as an accused but, on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.”

How right he was. 

It is our duty to protect and defend it and the system upon which our apex court rests with all our collective power, despite the words of modern-day charlatans like Lindiwe Sisulu and others. DM