POLITICAL MACHINATIONS AND THE INDEPENDENCE OF THE JUDICIARY – A REJOINDER TO THEMBA LANGA

The Constitutional Court of South Africa at Co...

The Constitutional Court of South Africa

Senior Attorney Themba Langa opens his article in Sowetan of 23 August published under the headline, “Judicial independence is not equal to supremacy over state” by writing that “the storm surrounding the nomination of Justice Mogoeng Mogoeng as President Jacob Zuma’s preferred candidate to be the next chief justice symbolises the destruction of the crucial cornerstone of our democracy – the judiciary”.

I would argue, and so would many other South Africans, that it is Zuma’s flouting of the constitution and the silly appointments he makes that symbolises the destruction of the judiciary. The President, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice. President Zuma came up with the name of Justice Mogoeng Mogoeng before consulting the JSC and leaders of all political parties represented in Parliament.

Let me examine Mr. Langa’s logic. Firstly, he seems to be thinking that President Zuma applied only legal considerations and not their attendant political ones in appointing Judge Mogoeng Mogoeng and overlooking Judge Dikgang Moseneke. Secondly, he seems to be suggesting that there won’t be any bungling simply because President Zuma is purported to be “acting within the parameters of the law” in appointing the chief justice. But we know that that’s not necessarily true. The brutal and discriminatory Apartheid government also “acted within the confines of the law” to discriminate against an entire indigenous population – the same way Zuma uses his “power to appoint a chief justice which resides exclusively with him” to discriminate against Justice Dikgang Moseneke.

In his own words Attorney Langa writes, “Judge Dikgang Moseneke is undoubtedly an influential jurist and leader and the issue should not be about Judge Moseneke”. Nowhere in the article does Mr. Langa write so laudably about Judge Mogoeng Mogoeng the way he did about Judge Moseneke. And why should Langa say the issue should not be about Judge Moseneke when he is an influential jurist and leader who has, in fact, been twice passed over for promotion by President Zuma?

Mr. Langa is impugning the motives of the Constitutional Court judges when he writes that they dragged Judge John Hlophe through the mud and that they fiercely rebuked their former colleague former Chief Justice Sandile Ngcobo even when Justice Ngcobo had publicly said he would retire as chief justice. He went on to say “it was really a frenzy by Constitutional Court judges to get rid of Judge Ngcobo”. Mr. Langa is disingenuous. The truth is that Judge Ngcobo threw in the towel after having got wind of the fact that the judgment was going to be against the extension of his term of office.

Mr. Langa went a bit too far when he says the culture of throwing stones and burning buildings, the trashing of streets with refuse by striking workers and disruption of learning and pulling of drips from terminally ill patients (like Schabir Shaik, emphasis mine) in hospital’s intensive care units by striking teachers and nurses, respectively, is not to be emulated by our judges”. Might we remind Mr. Langa that the unions of those striking workers he cited are members of the ANC’s tripartite alliance led by President Zuma? I am not defending Paul Hoffman but I think it is the dubious appointments President Zuma makes and Themba Langa’s sweeping generalisations about the judges that will negatively affect public confidence and perception of the judiciary and eventually undermine the rule of law.

Mr. Langa wrote that “whatever general merits such sceptism might have, it should have no place in the interpretation and application of the provisions of the Constitution“. Yet his argument quickly degenerates into polemics and outside the scope of interpretation and application of the provisions of the Constitution when he writes that Hoffman gives the impression that the law can be interpreted to advance an anti-Zuma agenda and that Hoffman’s interpretation of the Constitution can best be described as anti-transformation. Hoffman cannot be accused of manipulating the confidence of the public through falsehood and of misleading the public into believing that a “legal debacle” would result from the president’s nomination when he, like many South Africans, questions the doubtful nominations Zuma makes.

If Hoffman wants to sue let him go ahead without knuckling under the veiled threat that doing so would be construed as essentially presuming that the Constitutional Court can be used to “destabilise” our democracy over a matter that is firmly at the discretion of the president. When Mr. Langa concludes that “we should embrace the notion that judicial independence is not equal to judicial supremacy over Parliament or the president”, what does he mean? Does he want to rewrite the laws of this country? Judicial independence must be supreme and above everything else including Parliament and the president.

Judicial independence or independence of the judiciary is the idea that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests.

Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judges. Judges must be free to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests.

Funding arrangements and giving discretionary power to a single individual to appoint the Chief Justice do not satisfactorily guarantee the Constitutional Court’s institutional independence. There is a tendency on the part of some like President Jacob Zuma to try to gain the Constitutional Court as an outlying part of the President’s and the ruling party’s empire.

It is critical to the Constitutional Court’s independence that the Chief Justice owed primary loyalty to the people of South Africa and not to the President, Ministry of Justice or the ruling party.

On judicial appointments, the appointments process should be revised to significantly guarantee institutional independence. The current process where “the power to appoint a chief justice resides with the president” as Senior Attorney Themba Langa pointed out in Sowetan of 23 August should be rejected since this leads to the politicization of judicial appointments and to the Constitutional Court being seen to divide on some issue on political lines.

The role of judicial review and human rights jurisprudence, and how the judiciary functions independently should not be viewed as overstepping its role in this context. This is in contrast to what Senior Attorney Langa wrote that, “The Constitutional Court developed jurisprudence that gave judges virtually unlimited discretion to resolve cases according to what seemed fair to them”.

The judicial review must be a half-yearly or annual occurrence. In some countries, the ability of the judiciary to check the legislature is enhanced by judicial review. This power can be used, for example, when the judiciary perceives that legislators are jeopardizing constitutional rights.

In the same August 23 Sowetan article I expected Themba Langa as a lawyer to argue in favour of the independence of South Africa’s judiciary. In his opening paragraph he described the judiciary as the “cornerstone of our democracy” and made nonsense of that very concept in his concluding paragraph when he wrote that, “We should embrace the notion that judicial independence is not equal to judicial supremacy over Parliament or the president”.

He also embroiled himself into partisan politics where he wrote that, “It is also disturbing that Zuma is consistently being treated with derision and scepticism that is inexplicably accorded to ANC politicians by the likes of Hoffman”. Yet he wants us to believe that the passing over for promotion of Judge Dikgang Moseneke was purely based on legal considerations without any political undertones.

I think the way Judge Moseneke was discriminated against by President Zuma it is screaming for a review of judicial appointments. We can look at how other countries effect judicial appointment not that they have the best systems of appointing judges but they are better than South Africa’s and Botswana’s judicial appointments.

Let’s take Canada, for example where judges of the Supreme Court (South Africa’s equivalent of the Constitutional Court) are appointed by the Governor-General-in Council, a process whereby the governor-general, the vice regal representative of the Queen of Canada, makes appointment based on the advice and consent of the Queen’s Privy Council for Canada. By tradition and convention, only the cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the Prime Minister.

In South Africa we don’t have the governor general, the Privy Council and the Queen but we have the House of Traditional leaders (Ntlo Ya Dikgosi in Botswana) whose role, like in Botswana, has been downgraded in the post independence constitutions of these two countries. Many of our traditional leaders are educated and have good sense and should be imbued with patriotic feelings and foreswearing any sectional tendencies such as tribalism/ethnicity, regionalism, factionalism, sectarianism and partisanship. These traditional leaders can be given the constitutional role of identifying suitable candidates for the position of Chief Justice and Deputy Chief Justice in consultation with leaders of political parties represented in Parliament. The names of those suitable candidates can then be presented to the Judicial Service Commission which can then forward them to the President to choose from.

By Sam Ditshego