When and why the South African government disobeys Constitutional Court orders.

• Author: Hausman, David

INTRODUCTION I. WHEN GOVERNMENTS COMPLY: THE CONSTRAINED COURT IN THE UNITED STATES II. EXPLAINING NONCOMPLIANCE AND PARTIAL COMPLIANCE IN SOUTH AFRICA A. Hypothesis 1 : The government has always complied with Constitutional Court orders B. Hypothesis 2: The government is less likely to comply with the Court's decisions when they are unpopular C. Hypothesis 3: The government is less likely to comply with Court orders remedying violations of socio-economic rights D. Hypothesis 4: Government compliance depends on the political interests of the ANC, the institutional capacity of the implementing agency, and the degree of bureaucratic inertia 1. Political Interests of the ANC 2. Institutional Capacity 3. Bureaucratic Inertia III. CONCLUSION: IMPLICATIONS FOR COURTS APPENDIX INTRODUCTION

In Minister of Health v. Treatment Action Campaign, (1) the Justices of the South African Constitutional Court unanimously ordered the Minister of Health and all nine provincial MECs to take several practical measures to distribute nevirapine, an anti-retroviral drug that reduces the risk of mother-to-child HIV transmission. The Court declined, however, to issue a "structural interdict"--an order requiring the Minister of Health to submit an affidavit to the Court after detailing its compliance with the Court's order. "The government has always respected and executed orders of this Court," the Justices wrote. "There is no reason to believe that it will not do so in the present case." (2)

In fact, there was some reason to believe it would not do so. Health minister Manto Tshabalala-Msimang, who was known for questioning the efficacy of anti-retroviral drugs and denying that HIV causes AIDS, had said that she might not comply with a Pretoria High Court order to distribute nevirapine. In a television interview, when pressed on whether she would implement such an order, Tshabalala-Msimang had said, "Yes and no. I'm saying no." (3) She later backed away from that position, and by the time the Constitutional Court handed down its judgment in July 2002, the government had increased the funds allocated to AIDS prevention and slightly expanded access to nevirapine. (4) Nonetheless, a more skeptical Court might have doubted that a government known for AIDS denialism would fully implement a logistically complex order to distribute ARVs. Skepticism would have been justified. Although Tshabalala-Msimang released a statement pledging to comply with the judgment, (5) her department in fact delayed complying with the decision and failed to comply with large portions of it. (6) The Court's optimism about the minister's compliance may appear unrealistic in retrospect, but it reflected a record of government compliance with controversial Court decisions. Before Treatment Action Campaign, the government had complied, for example, with unpopular judgments holding the death penalty and anti-sodomy laws unconstitutional.

The government's lack of compliance with socio-economic rights judgments is now well known. Legal academics have documented the government's failure to comply both in Treatment Action Campaign and in Government of South Africa v. Grootboom, (7) a prominent judgment ordering the government to provide emergency housing for a group of evicted squatters. (8) A separate line of research has drawn attention to the Constitutional Court's lack of popular legitimacy, predicting poor social compliance with its decisions as a result. (9) None of these scholars, however, have squarely addressed the question of why the government sometimes complies and sometimes does not.

This Note draws on scholarship on United States government compliance with Supreme Court decisions to argue that South African government compliance varies not with the type of rights at issue or the judgment's level of popular support, but rather with the political interests of the African National Congress and the institutional capacity of the government agency responsible for implementation.

This Note has three parts. First, I briefly summarize scholarship on the constraints facing the United States Supreme Court. Second, I consider four hypotheses that might account for variation in the level of government compliance with court orders. Considering the aftermath of ten prominent cases, I argue that compliance has not depended on the popularity of the judgment to be enforced or on the category of rights at issue. Instead, the political interests of the ANC, the uneven capacity of government institutions, and simple institutional inertia better account for the variation. In the third and last part, I argue that, to the limited extent that courts themselves can facilitate enforcement of their judgments against government, supervising courts will be least effective in the face of institutional incapacity and most effective when confronted by simple institutional inertia.

1. WHEN GOVERNMENTS COMPLY: THE CONSTRAINED COURT IN THE UNITED STATES

   Scholars in the United States have catalogued the political and institutional constraints facing the Supreme Court when enforcing its decisions against the other branches of government. Those constraints offer a framework for understanding patterns of government compliance with Constitutional Court decisions.

   Political scientists who study the effects of United States Supreme Court decisions have found that the Court has surprisingly little power to bring about social change. In The Hollow Hope, a seminal study of the political and social effects of United States Supreme Court decisions, Gerald Rosenberg demonstrates that the Court is subject to political and institutional constraints that prevent it from causing large-scale systemic change. (10) Although Rosenberg focuses especially on the Court's role in social movements, the constraints identified are equally relevant to the more limited question of when the Court is able to secure government compliance with its decisions.

   Rosenberg identifies three categories of restraints that prevent the Supreme Court from causing social change. First, "the bounded nature of constitutional rights prevents courts from hearing or effectively acting on many significant social reform claims, and lessens the chances of popular mobilization." (11) Second, "the judiciary lacks the necessary independence from the other branches of the government to produce significant social reform." (12) Third, courts' enforcement power is limited in several practical ways.

   That third constraint is most relevant to the question of when governments are likely to comply with court orders. As Alexander Hamilton noticed already in The Federalist Papers, courts have "no influence over either the sword or the purse." (13) Courts have virtually no recourse against a defiant government. In recent United States history, the most famous example of such political defiance followed the Brown v. Board of Education decision, (14) which ordered the desegregation of schools throughout the country. Despite the Court's asserted supremacy, its orders in Brown were not enforced in the South, where courts faced strong white opposition to racial integration. In 1964, ten years after the Brown decision and the year in which the Civil Rights Act became law, only 1.2% of black children in the South attended an integrated school. (15) By 1972-3, after federal enforcement legislation, that figure had risen to 91.3%. (16)

   Further, courts may be unable to enforce their judgments against government even if politicians favor enforcement. Bureaucratic institutions are difficult for courts to influence because "successful reshaping requires the acquiescence, if not the support, of administrators and staff." (17) Bureaucracies may resist change imposed by outsiders, and where a decision is unpopular within an institution, cooperation can put jobs at risk. When an organization does comply, it may do so narrowly, thwarting the broader purpose of a judgment. Finally, a court order may simply overtax the resources or capacity of an institution. "For example, in the Wyatt case, one of the principal attorneys for the plaintiffs demanding reform of Alabama's mental health facilities concluded that the standards adopted by the court required 'staffing of the institutions with more professionals than there are in the State of Alabama.'" (18)

   In sum, Rosenberg offers three likely causes of government noncompliance with court orders: political resistance, institutional incapacity, and bureaucratic inertia. I argue that these three factors can explain much of the variation in government compliance with court orders in South Africa. (19)

2. EXPLAINING NONCOMPLIANCE AND PARTIAL COMPLIANCE IN SOUTH AFRICA

   The level of the South African government's compliance with court orders varies widely. This part evaluates four possible hypotheses about this variation: (1) that the South African government has always complied with Constitutional Court orders, (2) that the government is less likely to comply with unpopular decisions of the Court, (3) that the government is less likely to comply with Court orders remedying violations of socio-economic rights, and (4) that government compliance depends on the political interests of the ANC and the institutional capacity of the implementing agency, as well as on bureaucratic inertia. I reject the first and second hypotheses: that the government has always complied, and that its compliance depends on decisions' popularity. I find that the third hypothesis is partly descriptively accurate, but underinclusive and overinclusive: the government has complied with at least one resource-intensive socio-economic rights decision, and has often failed to comply with decisions remedying civil and political rights. Finally, I argue that institutional capacity and inertia, along with the political interests of the ANC, best explain the variation in the government's compliance.

   1. Hypothesis 1: The government has always complied with...