Courts can do a lot, but they can’t change voter choices

Ican no longer keep up with the avalanche of civil action by political parties and civil society groups against the government, parliament or both. Political litigation is so prevalent that in my new life as a politician I am often asked what issues my organisation is planning to litigate as part of its political strategy. That shows the extent to which court action is now regarded as part of normal political theatre, as important and life-changing for millions or the whole country as it sometimes is.

The DA’s dogged determination to ensure the National Prosecuting Authority did its job properly in respect of former president Jacob Zuma’s corruption case comes to mind. It was a watershed case study that forced him and the ANC to continuously choose to at least keep in place an important norm that the courts must be obeyed.

I also think the efforts of organisations such as Equal Education and R2K are profound for real people and our democracy. We would be worse off without them, so I hope this article begins a discourse about how to fix our politics and advance our democracy instead of discouraging these civil society groups from doing the proverbial “Lord’s work” they have been doing over the years.

The litigation by civil society groups is more an indication of a political defect than what a mature democracy should experience. Civil society groups litigate for political outcomes because they also don’t have faith in parliament and the ability of political parties to effect political change.

In a competitive democracy, those who hold political power should ordinarily worry about doing things that constituents don’t like because they may affect their prospects at the next election. This is why lawmakers sometimes vote against what their party wants or have negotiating leverage to remove a risk their constituents worry about.

South Africa does not have that. We have a closed-party list system and a dominant governing party that has been in power for almost three decades. We do not even have National Assembly voting districts. As a consequence, almost all South Africans do not know who to approach on matters relating to parliament. We elect parties that have carte blanche to make whatever political choices suit their motives, good or bad. This is why one day someone who is a dodgy former public servant could be sworn in as an MP and then nearly become a finance minister within days. The same is true for a president or deputy president.

Were politicians wary of voters, we would never have had the pathetic scenes we experienced when a sweaty Nathi Nhleko, then minister of police, and a fidgety Thulas Nxesi, minister of public works, told us an unfortunately shaped swimming pool in Nkandla was a “firepool”. They could do it because the majority of MPs in parliament, who belonged to the ANC, would back them up instead of asking them to account.

There was nothing the opposition could do about it, and since it did not have the majority, its only option was to approach the courts. What followed was a seemingly groundbreaking judgment by the Constitutional Court on the enforceability of public protector remedial actions, which wobbles when review proceedings are made. It is a well-meaning judgment, but one laced with moral outrage which publicly resonated at the time but now doesn’t help advance jurisprudential clarity and consistency.

Much of this litigation happens because voters have no power and their outrage is worth almost nothing in our system. The only time voters get to exercise their power is at election time, and they have convincingly voted for the ANC in the past.

I always work on the assumption that voters are smart and understand the trade-offs involved in their choices. This is why Cosatu members on the Cape Flats vote for the DA to govern the Western Cape and the City of Cape Town, otherwise how else do you explain their dual political choices?

This is also one of the reasons I do not believe the assumption that social grants are the reason poor voters choose the ANC. My experience of voters in all communities is that they are generally thoughtful and will have at least one very good reason for choosing a certain political party.

The assumption that voters can’t think is behind the belief that one has to be buffoonish and silly to be “relatable”. I think it’s classist, but I digress.

The point I’m making is that there are times when the only sustainable solution is a change of government, which the courts cannot effect. Years ago the courts determined that pit latrines should be eliminated. They haven’t been and never will be as long as the ANC remains in power.

It is good that we have a constitutional democracy where we can go to court to force the government to meet its obligations, but this has its limits. The courts cannot determine the outcome of parliamentary debates. If judges were to direct parliamentarians specifically on how to conclude and vote, this would violate the principle of separation of powers between the legislative, executive and judicial branches.

Another consideration is that bad policy is not unlawful. For instance, even though Russia accounts for 0.2% of our exports at $1.4bn (about R27bn), the ANC government has “earned” the right to support its invasion of Ukraine because it has been chosen by the electorate to make such choices. In contrast, the US, which the ANC distrusts immensely, accounted for $220bn in exports in 2022 alone.

As economic rationale goes, our government’s position is stupid, but such are the implications of voter choices. We are likely to regret this foreign policy choice, but no court can instruct the ANC government to have a different mindset.

Until voters can link their material conditions to the choices their elected representatives make, we will always have people or parties that run to the courts for better political outcomes. Over time, this will politicise the courts and create discord between political actors and voters that is premised on whether a court order has been ignored, not whether voters disagree with the choices political parties make. This does democracy no good. It does not help the courts either. Ultimately, the most sustainable path is for those of us who wish to secure the trust of voters to show we have better solutions, would exercise judgment better and make the best choices.

To get to this outcome we need political reforms. Our political and electoral systems on the one hand, our political culture on the other, are underdeveloped and broken. This is one of the reasons Rise Mzansi has political reform as one of its key priorities.

Citizens should not have to spend so much money litigating when all they should be doing is making strong representations to their political representatives to make different political and policy choices, and to legislate better. That outcome needs activists in T-shirts, not advocates in robes.

Much of this litigation happens because voters have no power and their outrage is worth almost nothing in our system