Guest Post: Dr. Kate Dent on “Lawfare in South Africa”

Today’s post is a very interesting addition to Lawfire’s growing collection of scholarship on the phenomena of lawfare.  The popular version of it mostly relates to armed conflict in some way, and we discussed it recently (“Yes, there is consensus that ‘lawfare’ exists…but America still needs a strategy for it”).  That context is becoming ever more complex as illustrated by Eric Chang’s post last month where he discusses how international investment law can become a tool of lawfare (“Ukraine’s Lawfare Strategy May Help in Deterring Further Russian Plans for Invasion”).

Increasingly, however, we are seeing yet more varieties of lawfare.  Today’s author, Dr. Kate Dent, who received her PhD from South Africa’s University of Cape Town in December, is emerging as one of the world’s leading experts on an important permutation of lawfare, that is, how it can impact the judiciary.  The University of Cape Town News describes her work this way:

“The rise of ‘lawfare’ in South Africa, or the judicialisation of politics, threatens not only the judiciary but democracy too. University of Cape Town (UCT) graduate Kate Dent’s PhD thesis explores the phenomenon, the legitimacy of courts to act in a political role – and the inherent dangers for the country when accountability is at large.”

The News adds:

“She describes lawfare as “a growing reliance on adjudicative means for clarifying and settling highly contentious political questions”. This has become part of the South African zeitgeist, she said. Although her thesis focuses on the years between 2009 and 2020, the topic is red hot; and a moving target for a Constitutional Law researcher.”

As the News points out, this a “red hot” topic in South Africa, but as you read Kate’s essay, ask yourself these questions: is this form of lawfare unique to South Africa?  Or is it something we may be seeing elsewhere, even in the U.S.?   

It’s great to see talented scholars wrestling with the dimensions of lawfare, and I urge you to read Kate’s very thoughtful analysis so you can be up-to-date on the latest thinking!*

Lawfare in South Africa

by

Dr. Kate Dent

It is by now well established that lawfare as a concept has evolving usage and plasticity understood by the context in which it is used.  The permutation of ‘lawfare’ as it has come to be known in South Africa, springboards off the term as coined by Comaroff and Comaroff:

…lawfare might also be a weapon of the weak, turning authority back on itself by commissioning courts to make claims for resources, recognition, voice, integrity, sovereignty.…the displacement of the political into the legal or the turn to the courts to resolve an ever greater range of wrong.

Lawfare has become the overarching term to describe the judicialization of politics – what Ran Hirschl expounds as “a growing reliance on adjudicative means for clarifying and settling fundamental moral controversies and highly contentious political questions”.

Traces of lawfare

Elements of lawfare as ‘politics by other means’ can be found in both South Africa’s oppressive history and in its transition to constitutional democracy. The architecture of apartheid utilized the violence of the law.

Rule by law, however, made power vulnerable to law – which allowed the court to be used as a site of struggle by the resistance movement.

Transitioning into democracy, political reconstruction through constitutionalism that included a strong judiciary with wide review powers gave a clear arena and a shared language to contest politics through the Court. 

Lawfare’s duality

South African judicial political dynamics highlight a duality to lawfare. Lawfare can be both an abusive manipulation of the law and a last resort.

Abusive lawfare tactics are identified as bad faith applications designed to obstruct, delay, and hide behind the legal process in attempts evade responsibility.  Most often lacking cogent legal argument, multiple interlocutory objections are made to ‘run out the clock’.  Former President Jacob Zuma has avoided criminal prosecution since 2008 through these Stalingrad tactics.

In a different sense, lawfare is the judicialization of politics caused by the breakdown of politics. Resort to the Court is caused by the failure of the other branches of government to fulfil their assigned constitutional role.

Operating as a dominant party democracy under the African National Congress (ANC), South Africa experiences institutional imbalance. State and party are one and the same.  Loyalty is to party, not to the People or the Constitution.  As a result, the Legislature is willfully delinquent in holding the Executive accountable. This has fostered a culture marked by state capture, rampant corruption, and widespread institutional failings. 

Non-judicial mechanisms for accountability have been disregarded, efforts at oversight met with impunity, and institutions designed to support democracy have been hollowed out. Opposition parties and civil society organizations are left with little recourse but to appeal to the Court to be a constitutional bulwark when the State engages in unconstitutional and unlawful actions.

Lawfare as the “last line of defense'”

In this sense, lawfare is being used as a last line of defence, as a vehicle of accountability when political avenues fail.

Judicial involvement in this context is needed to uphold the integrity of the constitutional system as a whole – consistent with the courts role as upper guardian.

The Constitutional Court in the last 10 years has been asked to rule on parliamentary procedure to remove a president, transparency in political party funding, the presidential power of appointment and the power of the Public Protector to hold the President accountable.

In June 2021, the Constitutional Court held Zuma in contempt and sentenced him to 15 months in prison for defying a court order to appear before the Zondo Commission investigating State Capture.

The ruling precipitated violent looting, unrest and attempts at insurrection in parts of the Country.

A “dangerous space for the Court”

The judicialization of politics unavoidably places the Court in direct conflict with Executive power. This is a dangerous space for the Court to find itself in – because of the ease with which a hostile Executive in a dominant party democracy can implement measures to undermine judicial independence. 

The Court has had to hold the line against efforts at judicial interference and the functioning of the justice system.

It blocked then President Zuma’s attempt to extend the term limit of the Chief Justice; ruled that the record of deliberations for judicial appointments by the Judicial Services Commission must be disclosed; found the appointment of the National Director of Public Prosecutions unlawful and the independence of the new Special Investigation Unit insufficient. 

Although successfully blocked by the Constitutional Court, these political attempts represent the tentative beginnings of abusive constitutional change.

Formal respect for rule of law institutions is maintained while simultaneously putting in place changes that ensure these supporting pillars of constitutionalism are hollowed out and devoid of substance.

Implications of lawfare for the judiciary

Judicialization of politics very quickly exposes the court to the politicization of the law where the court is then exposed to political attack. The courts involvement in political issues has led to accusations of ‘government by the judiciary’ and South Africa being run by a ‘judicial dictatorship’.

The Constitutional Court and High Courts have been accused by the highest levels of the ruling party of judicial intrusion, judicial corruption, judicial bias, of being counter-majoritarian, counter-revolutionary, obstructionist to progress and transformation and agents of ‘white monopoly capital’.

This aggression towards the court represents its own form of lawfare – using the externalities of lawfare with the objective to galvanize resistance. These attacks form a narrative that the judicial system is being abused to persecute political actors, altering the perception of integrity and independence of the judiciary. 

Many of the cases brought before the Constitutional Court are opposition parties bringing review applications of government action. These actions are perceived as a justifiable judicial intervention by those who feel that accountability mechanisms have failed to effectively constrain power in the democratic space. This, in a sense, is ‘good’ lawfare.

In the eyes of the dominant party being held accountable, resort to the Court by weaker political parties is seen as actions that constitute ‘bad’ Lawfare, designed to circumvent democracy by invoking the judiciary. The party bringing litigation is excoriated for the ‘politicization’ of the Court.

The danger of the abusive dimension of lawfare is well documented – the degeneration, or a devaluing, of the law through its disingenuous use,  promoting an attitude of contempt for the law.

But what the South African experience has shown is that even if political cases before the court represent ‘lawfare’ as a legitimate and bona fide use of the law, there are dangers which still inhere.  The potential for damage to the normative independence of law and the judiciary still remain.

Responding to lawfare

Regarding abusive lawfare, it is clear that the Constitutional Court has reached the end of its tolerance. More and more the Court has rebuked state functionaries for reckless applications and their disregard of constitutional norms.

In addition, they have showed a willingness to impose punitive personal cost orders in these cases. Acting Chief Justice Kamphepe in the recent recission judgment said “the court is not going to indulge applications by those who at every turn of the page sought to abuse the judicial process”.

The Constitutional Court has shown remarkable courage in navigating the era of lawfare.  However, the more successful the Court is in holding the line against executive abuse of power, the more the judicial route is identified as a powerful weapon to achieve more abusive political objectives.  Identifiable in South Africa’s ruling party’s political attacks, is that, for the most part, attack is focused on individual judges while still advancing a rhetorical respect for the judicial institution.

In numerous nations on the path to authoritarianism, the emerging trend is not direct political attack on the judiciary but refocusing efforts towards judicial capture.  It is in this space that a connection between lawfare and abusive constitutionalism is found.  

Once rule of law institutions are hollowed out – the operation of rule by law through those institutions can be used to consolidate authoritarian power, by capitalizing on the courts legitimacy and moral authority.

However, this tactic of working through rule of law institutions is effective only as long as the institution is viewed as independent. As U.S Senator Sheldon Whitehouse has articulated: if the Court is used for politics by other means to implement a political agenda, the Court has to stay operational for the capture to work.

It has to maintain, at the very least, its ‘appearance’ of legitimacy if the objective of this type of lawfare is to be achieved – use of the law to compel compliance and constrain action out of commitment and respect for the rule of law.

When this gambit of court capture transgresses too far, the judiciary will be viewed as a partisan, highly politicized body. In pushing lawfare too far, for too long, legitimacy is lost, ultimately destroying the very essence of its own power.

* NB: Some spellings have been changed from the South African style to the U.S. version.  I also added the bolding of parts of the text.

 About the author

Dr. Kate Dent is a South African legal researcher with a focus on judicial politics and constitutional law. She was awarded her PhD from the University of Cape Town last month. Her thesis is titled “Lawfare and Legitimacy: the wicked problem of judicial resilience at a time of judicialisation of politics in South Africa”.  

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.  

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!