Double Speak About Judicial Reform In South Africa Raises Alarm Bells
Hostile statements from ANC officials towards the judiciary have clouded the announcement of a study to assess the impact of Constitutional Court Decisions. It is now critical that the ruling ANC demonstrates its support for South Africa’s constitutional order.
Hamadziripi Tamukamoyo, Researcher, Crime and Justice Division, ISS Pretoria
Should South Africans be worried about the double
speak from the ANC concerning transformation of the judiciary? Speaking to
journalists in parliament on 28 February 2012, the Minister of Justice and
Constitutional Development (DoJ), Jeff Radebe asserted that the government had
no interest in reducing the powers of the Constitutional Court. Radebe was
visibly irritated by this line of questioning at the press conference and took
umbrage with what he saw as unnecessary concerns each time the ANC debates the
transformation of the judiciary. Radebe stated that cabinet intended assessing
how “Constitutional Court rulings have impacted on the lives of ordinary South
Africans” and how “challenges” to the goals of transforming South African
society could be better addressed by the judiciary.
In the preface to the Discussion Document on the Transformation of the Judicial System and
the Role of the Judiciary in the Developmental South African State released
in February 2012 by the DoJ, Radebe argues that, “the transformation of the
judicial system is a constitutional imperative which is entrusted upon the government
as a branch of the state, assigned the responsibility of developing and
implementing national policy and of initiating legislation, among others.”
Radebe rightly states that the “judiciary has an
important role in safeguarding and protecting the Constitution and its values
and in ensuring the consolidation of democracy and the realisation of a better
life for all.” Further that, “it is important that the role of judicial
officers is properly understood by those whose fate and livelihood is dependent
on the judgments they give through the courts.”
In South Africa the rulings of various courts can be
the subject of vigorous and free public debate. Free speech is after all a
pivotal pillar of a constitutional democracy. The discussion document does
acknowledge that the three “branches of the state are co-equal” partners
entrusted with distinct powers in their quest to realise the ideals of a
democratic South Africa. However, the
talk of judicial review, especially at a time when a number of Constitutional Court
decisions have been against the government is being treated with suspicion,
specifically in light of ongoing comments by senior ANC officials that reflect
a profound misunderstanding of the role of the courts or reveal outright
hostility towards the judiciary. These include:
- In September 2011, Ngoako Ramthlodi, the
Deputy Minister of Correctional Services said, “In the past 17 years… we have
witnessed sustained and relentless efforts to immigrate the little power left
with the executive and the legislature to civil society and the judiciary.
Power (is) systematically taken out of the legislature and the executive to
curtail efforts and initiatives aimed at inducing fundamental changes.”
- ANC Secretary General, Gwede Mantashe in August
2011, posited that the judiciary was becoming a form of opposition and said,
“You can`t have a judiciary that seeks to arrest the functioning of
government.”
- President Jacob
Zuma, in an interview in early February 2012, stated that, "We don`t want
to review the Constitutional Court, we want to review its powers. It is after
experience that some of the decisions are not decisions that every other judge
in the Constitutional Court agrees with." Apart from demonstrating a lack
of understanding of where this court receives its powers, this statement is in
direct contrast to the statements made by Radebe who said that transformation
of the judiciary was not about the Constitutional Court specifically.
- ANC national spokesperson, Jackson Mthembu, stated on 20 March 2012 that, "It is
clear that democracy can be undermined by simply approaching courts to reverse
any decision arrived at by a qualified organ of state,” because according to
the ANC, the result is a "blanket permission to political parties to review
any state decisions using courts."
- ANC Chief Whip Mathole Motshekga said on 21 March 2012 that the ruling party would do everything in its
power, “to prevent government`s attempts to deliver services to the people”
being derailed by the courts.
From the statements
above, there appears to be no understanding that if the organs of state acted
within the laws of country, and thereby in the interests of all South Africans,
the courts could not be used to overturn their decisions. Moreover, very often
the courts do not stop executive bodies from doing anything they are entitled
to do, but rather compel them to fulfil their responsibilities. For example,
there are a number of Constitutional Court rulings preventing provincial and local
governments from illegally evicting the poor and compelling them to fulfil
their legal obligations relating to the provision of housing so as to prevent
homelessness.
The conflicting
statements from various senior ANC officials with what is written in policy
documents, raises legitimate concerns that the ruling party does not have a
coherent position as far as the transformation of the judiciary is concerned. The statements from ANC officials should be
seen in the light of various upper court judgments that have caused
embarrassment to the executive. Recent examples that highlight the poor
exercise of executive power include:
- In the Glenister judgment on 17 March 2011,
the Constitutional Court ruled that the legislation establishing Directorate of
Priority Crimes Investigation (DPCI), also known as the Hawks, failed to meet
both international and constitutional legal obligations to ensure that it was
sufficiently “independent from political interference.”
- During July 2011, the Constitutional Court
ruled that Zuma’s extension of former Chief Justice Sandile Ngcobo’s term was
unconstitutional and amounted to the executive usurping the power of
parliament.
- On 1 December 2011, the Supreme Court of
Appeal (SCA) ruled that Zuma’s appointment of Menzi Simelane, as head of the
NPA, was “irrational” given that he was clearly not a fit and proper person for
that office and therefore “inconsistent with the Constitution and invalid”.
- On 20 March 2012, the Supreme Court of
Appeal ruled that the Democratic Alliance had the right to subject to judicial
review, the controversial decision in 2009 by then acting director of public
prosecutions Mokotedi Mpshe, to drop various criminal charges against Mr Zuma.
Mpshe then stated that, “the decision was not based on
the actual merits of the case” and “did not amount to an acquittal.”
The assessment of the Constitutional Court, the first
since 1994, is therefore an interesting proposition coming at this time from
the executive branch of government. Typically, criticism of the court from legal
scholars tends to focus on how it could have done more to promote
socio-economic rights, for instance by ruling on a minimum standard of
socio-economic rights (e.g. the minimum amount of housing, water, education, etc.)
that everyone is entitled to. However, it has resisted doing so, perhaps
rightly, arguing that this would be to stray into the executive policy making
arena and be more onerous on the state if it did. If anything, judgments such as the Grootboom and others versus the Republic of
South Africa, amongst many others, have shown that it is the executive
branch, not the judiciary, which is really failing the poor of South Africa. In
the Grootboom case the Constitutional Court determined that the State is
bound to provide citizens with a minimum
of socio-economic rights, including the
right to adequate housing.
The
DoJ document, in its title, refers to the “... role of the judiciary in the
developmental South African state,” yet there is very little articulation of
what the judiciary can possibly do to advance the ideals of development and to
ease the plight of the poor, beyond that which it currently does, which is to
compel the executive to act in accordance with the constitution and the laws
that flow from it.
On
the day that the discussion document was released, a TNS survey concerning
respondents’ perception of the judiciary was published. “Asked whether judges were biased towards
the government, 38% agreed while 27% disagreed - while the "don`t
know" response stood at 36%.” This
reveals that a large proportion of people differ from various senior ANC officials,
as they tend to believe that the judiciary works in favour of the executive.
Given that two thirds of those surveyed believe that judges are biased one way
or another demonstrates the fragility of the judiciary. By unfairly attacking
the courts, powerful politicians are thereby undermining the rule of law.
Until
there is a consistent message from all ANC officials, both in speeches and
documents, that reveal a clear understanding and respect for our Constitution
and the court that is tasked with upholding it, the media and other
stakeholders will raise alarm bells. Until then, citizens who value our
constitutional democracy have every right to be concerned.
