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ARE WE IN A CONSTITUTIONAL CRISIS? AN OPINION

The Jacob Zuma judgement has again woken up the persistently unsettled notion of misconstruing extreme exercise of tools, mechanisms, and opportunities entrenched in the country's constitution to test the limits of human rights under the law with a constitutional crisis situation. Our bar of expectation of citizens to challenge the system to its limits is far too low for us to understand individuals and institutions that put them to the ultimate of all possible tests it can be subjected to. In this opinion piece, a question is being asked: has the Jacob Zuma judgement plunged us into a constitutional crisis? If not, is there a crisis we may confuse with a constitutional crisis?

"A constitutional crisis is a potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down" (Levinson and Baklin, 2009). Donovan (...) summarises conditions within which such a crisis may occur as (i) when leaders, especially from within the arms of the State (the executive, judiciary, and legislative), claim the right to suspend the Constitution or parts thereof, to preserve social order, (ii) when the same leaders comply with the Constitution, but the political crisis remains or leads to disaster, (iii) when leaders disagree over what the Constitution means and who has specific powers. 

In its quest to elaborate on what this phenomenon is, political science, through Levinson and Baklin, proffers the following as conditions under which such a crisis can flourish: (i) when the Constitution does not spell out its intention, (ii) when the Constitution's meaning is unclear, (iii) when what the Constitution states is not politically feasible, or (iv) when organs of state and state institutions, and how they are set up under the constitution fail to work together and a power struggle ensues. 

We are not just facing a constitutional crisis, but a crisis of understanding the very nature and structure of our democracy and its intricate human rights system. When a person fully comprehends the extent of their rights and exercises them, it can be perceived as irritating by those who have either lived without such rights or are unaware of their limits. 

I have seen that with our Generation Z and millennials when they engage with some of us from earlier generations, we are impatient at their command of children's rights, grammar, and vocabulary. The same is experienced when a patriarchal person engages with a feminism-influenced female counterpart.

It is therefore understandable when a person of Zuma's access, like the Afriforum and others, dare I say including the often-irritating stretch of constitutional rights by foundations such as the Hellen Suzman Foundation, to be easily seen as irritants or constitutional delinquents. It will also not be far-fetched, and arguably so, to conclude that the base socialisation of the seven judges who took a majority view on the Zuma case might be an outcome of the same human rightness background-induced irritation.

Yes, we are not in a Constitutional Crisis, but we might be in an (inter)generational crisis of understanding and living in a human rights culture when the spatial features of our everyday life as manifest in inequality, the skills infrastructure undergirding the courts, the precedence reference Pool that is relied upon to make judgements, and the general power relations in the excellence legitimising complexes such as law review journals. Yes, we are not in a constitutional crisis, but we might be in a two-streamed establishment-building process, euphemistically called factions, at the centre of the battle to control the political economy. We should remember that the crisis of capitalism in any social revolution can only be resolved by controlling the adjudicative power of the state. This power alone defines the property relations in a society and, thus, all other related ideations and aesthetics. 

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