Can a constitutional court function as an effective anticorruption advocate? South Africa’s Constitutional Court (the “ConCourt”) has taken on exactly such a role. Perhaps the high water mark of the ConCourt’s efforts to combat corruption came in Glenister v. President of South Africa, a 2011 case in which the court found the Constitution contained an implied governmental obligation to establish an effective anticorruption unit. The ConCourt’s track record on anticorruption is admittedly not perfect. The legislature has yet to fully give effect to Glenister, and the declining power of parliamentary moderates may impede full implementation of the decision. Perhaps more troubling, in 2013, two ConCourt justices refused to testify before a tribunal investigating claims that, on behalf of President Jacob Zuma, a lower court judge allegedly requested that the two justices issue Zuma-friendly rulings. Nonetheless, in addition to its watershed decision in Glenister, the ConCourt has found against Zuma in several cases, despite six of its eleven justices being appointed by him. When combined with its continued insistence that the anticorruption unit must be truly indenpedent, the ConCourt’s past successes in changing government behavior suggest that it may yet succeed in forcing parliament to act on Glenister.
Overall, then, the story of the South African ConCourt’s role in fighting corruption appears to be an optimistic one. The ConCourt’s example seems to demonstrate that not only can a constitutional court be an anticorruption tool, it can be such a tool even in an incredibly unfriendly political environment. Indeed, the South African ConCourt’s success may suggest that in systemically corrupt environments, the courts–and the Constitutional (or Supreme) Court in particular–may be the best hope for reformers seeking bulwark against corruption and an instrument of change.
On closer examination, however, it appears that the South African ConCourt’s success may not be easy to replicate elsewhere. The South African ConCourt has managed to attack corruption, despite the political and institutional odds stacked against it, due to a set of unusual, perhaps unique, circumstances.
At the outset, it’s worth appreciating just how difficult the South African ConCourt’s position is. As I’ve discussed times on this blog (see here and here), the fact that South African politics has been dominated by one party–the African National Congress (ANC)–since the end of apartheid has posed significant challenges to fighting corruption. This one-party dominance would, under most conditions, undermine the independence of a constitutional court. A court captured or dominated by political interests is unlikely to zealously seek out corruption amongst its compatriots; any anticorruption decisions are likely to at most be part of selective prosecution against political enemies. And it seems as if the ANC should have significant political sway over the ConCourt: the ANC has had substantial power over the judicial appointment process by controlling the presidency and the National Assembly and, through them, the body that suggests appointees to the president. Moreover, the ANC has not yet had to fear that another party will come to power and retaliate against it by appointing its own highly partisan judges, the usual check on highly political appointments (see here and here).
So what has enabled the ConCourt to preserve its independence to take a stand against corruption? The answer seems to lie in the unusual culture and history of the South African judiciary and legal profession. Instead of trying to argue to apartheid-era judges that they were operating in an immoral system, 1960s anti-apartheid lawyers embraced a kind of legal formalism–the idea that judging is (as Theunis Roux puts it) an “essentially apolitical process of logical deduction from formal legal norms.” When these lawyers became the first ConCourt justices, they took this attitude with them. Also, Arthur Chaskalson, the first chief justice, and other important founding figures, like Nelson Mandela, set a tone of valuing judicial independence. And while all the original justices have since been replaced, this replacement has occurred in phases, perhaps allowing the court to use soft pressure to ensure the new justices acclimatize to a courtwide culture of judicial independence.
Furthermore, although the ConCourt justices may be part of an apolitical, formalist legal culture, the Chaskalson court’s justices and many of their successors started out as human rights lawyers, and that background has influenced their attitude on the bench. Their interest in a more equitable, democratic society likely established a court environment that is sympathetic to anticorruption efforts. It therefore seems that the judges of the South African constitutional court emerged from a somewhat unusual legal culture that managed to fuse a strongly formalist understanding of law and judging as neutral and apolitical (which helped them to preserve a spirit of independence from politics) with a tradition of human rights activism and advocacy (which fostered a commitment to fighting corruption). These impulses may seem contradictory, and perhaps at some level they are, but their unusual combination has served South Africa well.
A number of other factors have also helped. For one, despite the corruption allegations that have swirled around the ANC leadership for some time, the South African ConCourrt seems to have remained, for the most part, corruption-free. A court composed of people themselves engaged in corruption has at much less incentive to root out graft, and–as examples like Seno Adji of the Indonesian Supreme Court show–the appointment of a corrupt chief justice can quickly turn a relatively clean court into a haven for impropriety. The South African ConCourt’s power to fight corruption effectively also derives in large part from South Africa’s transformative Constitution, which has given the ConCourt the legal tools to act upon both its formalist legal orientation and its interest in combating corruption by textually enshrining socio-economic rights and emphasizing the “establish[ment of] a society based on democratic values, social justice and fundamental human rights [and the] [l]ay[ing] the foundations for a democratic and open society.” The Constitution also gave the ConCourt constitutional review powers the apartheid-era courts did not have. Further, it recognizes international and foreign law as important guiding principles, and indeed the Court relied on these provisions in reaching its Glenister decision.
Given all of the above, despite the ConCourt’s admirable independence and effectiveness, it’s difficult to view the court as providing a useful model for countries seeking another anticorruption institution. The ConCourt’s success seems largely to be hinged on uncontrollable factors (history and legal culture) and foundational institutional elements–such as a progressive constitution–that other countries might have difficulty garnering the support to mimic. As inspirational as the ConCourt might be, the uniqueness of the South African context means that any lessons about constitutional courts’ usefulness as corruption fighters should–unfortunately–be read narrowly.
Interesting post. You make a strong case for how the success of the ConCourt is historically rooted. But the importance of early factors – like the background of lawyers under apartheid – makes me wonder about the future of the ConCourt. Soon, the people graduating from law school and entering the legal profession in South Africa will have known only the post-apartheid era and one-party dominance. A normative commitment to an apolitical judiciary only goes so far – the American (federal) judiciary is predicated on political independence but many would argue the reality is very different – so historical experience substantiating that independence seems particularly important. Do you think the other factors explaining the nature of the ConCourt bench – like the progressive Constitution and a legal culture – will be enough to sustain its current trajectory in the face of what seem to be countervailing influences? If so, are there any instructional lessons that may be gleaned from how the ConCourt has been able to _maintain_ its independence?
My sense so far is that, though the current ConCourt’s head of steam may have diminished somewhat, it’s still headed in a generally positive direction, despite obstacles that I would have expected to hold it back–which makes me think that answering “yes, it’s sustainable” isn’t totally unrealistic. I am nervous about it, though–there’s definitely going to be a real generational turnover at some point (i.e., when the anti-apartheid activists are no longer around), and that’s going to be the moment of truth. There’s still a vibrant civil society in South Africa that’s engaged with the legal system (as you know), but those aren’t necessarily going to be the people getting the appointments. The best I can offer as instruction is that quickly establishing legitimacy is an important shield from political interference…but at the same time, a court able to check the excesses of other governmental branches might help ensure a better government and therefore better judicial appointees (not that the ConCourt has really done that, but to go beyond its example, the point is that as much as a court should want to stay out of the political process for its own safety, on a long time scale perhaps some interaction with politics can be helpful).
I want to put to you two hypotheses — one weaker, the other stronger — that one might infer from your analysis, and invite you to say more about which one you’d endorse.
The weaker hypothesis is that the unique circumstances surrounding South Africa’s ConCourt means that we can’t use its success as a model for other countries one way or the other — whether constitutional courts can, as a general matter, serve as effective anticorruption fighters remains an open question, or at least a question on which the South African experience sheds little light.
The stronger hypothesis is that the South African experience is not only not very helpful, but affirmatively misleading, and that in fact in most cases constitutional courts are _unlikely_ to be effective as primary anticorruption institutions. On this view, constitutional courts are generally not well suited to this role, given institutional or political considerations, and the South African case is actually the exception that proves the rule.
Obviously this sharp distinction is a gross oversimplification, but hopefully the question is clear.
And if your answer is the former — South Africa’s circumstances may be unique, but it may still be possible for Constitutional Courts in other contexts to play a similar role, under the right circumstances — I wonder if you might speculate further (either in a reply comment, or perhaps in a future post) about what factors might be most important in determining whether this will in fact occur.
My reply here is going to largely be baseless speculation, since I think I’d need to do some more comparative research before really knowing the answer to your question (research which intrigues me–I may have to take it on in a future post, as you suggest).
My first instinct is that, even if the factors that led to the South African ConCourt’s success are largely irreplicable, there are certain things that might allow constitutional courts to effectively fight corruption. If their justices, for example, are sufficiently insulated from the other branches of government, they might be able to take stronger stances than, say, the head of an anticorruption agency (though theoretically one could insulate an ACA head as well–give them longer tenure, etc.). A few of the big hurdles would be getting the right justices in place and ensuring that decisions they make are actually enforced. In regards to the latter, constitutional courts might (MIGHT) have some slight advantage in terms of respectability/legitimacy that could help them (i.e., facing off against an institution with the word “constitution” in its name isn’t undertaken lightly), but there are also countless examples of courts struggling to ensure compliance with their decisions (I’m sure there must be research out there about how courts can be set up to or go about their work in order to increase their likelihood of success in this regard, but I’m not familiar with it). Outside of that and the legally binding nature of their decisions, I can’t immediately think of another enforcement advantage, though it seems like there should be more (or, perhaps as an optimist, I just want to believe there are more)–but then again, maybe those two benefits are significant, even if hardly bulletproof. In terms of the former, perhaps there’s research that’s been done on the best judicial appointment process, but it does seem like the quality of the justices you get is largely going to be determined by the whims of the rest of the government–unless the court has separately accrued enough public respect that other governmental branches don’t dare mess with it (some of Zuma’s appointment decisions still surprise me).
Even if one did come out on the side that constitutional courts can be good anticorruption advocates (and, as I said, the optimist in me seems to want to argue they can be, despite the list of problems that keeps growing in my mind), there are probably certain types of corruption they’re better at than others. They aren’t going to be able to fight a day-to-day battle in the same way that an office specifically devoted to the task would, nor would they have the specialist knowledge. Occasional big-picture interventions to prevent a major derailment of the anticorruption agenda would probably be more in their wheelhouse.
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