What lies behind Zuma’s choice?

The question on everyone’s lips this past week was: what lies behind President Jacob Zuma’s surprise nomination of Justice Mogoeng Mogoeng as the preferred candidate for the position of Chief Justice of the Constitutional Court and  head of South Africa’s judiciary as the independent third branch of government?

Was it, as some perceived, another attempt to bring the judiciary more closely under political control, like happened with the appointment of a Zuma man at the National Prosecuting Authority (NPA) and, to a degree, with the Judicial Services Commission (JSC)? Is he the bona fide best candidate, or thus a symptom of a much larger and deeper problem?

The first two suspicions can be addressed together. While the ruling party leadership can theoretically appoint politically subservient people in key positions  – and the ANC has certainly done so in the past  – it would be naive to believe they could take over an entire arm of government such as the independent judiciary.

South Africa’s constitutional democracy is strongly premised on the concept of the separation of powers among the three branches of government -- legislative, executive and judicial.

However, key officials such as the head of the NPA, Menzi Simelane, as well as some members of the JSC (which appoints judges) appear to have been politically handpicked to look after the interests of the ruling party and /or its leaders. There were also key ANC-appointments in the police, intelligence services and other state entities.

Subsequent developments such as the sudden shelving of investigations into alleged arms-deal corruption led to suspicions about the integrity and role of some of these appointees – especially since senior ANC leaders, including President Zuma himself, were allegedly implicated in some or other way.

Clearly political appointees can impact on the functioning of the various democratic, constitutionally mandated institutions and organs of state. It happens in many countries, including in South Africa – both before and after 1994.

But, a complete political hijacking of the judiciary in present-day South Africa would be most unlikely, if not impossible. There are simply too many checks and balances, including the already entrenched independence of the judiciary and of the courts; a strong Constitution; parliamentary mechanisms and vibrant opposition political parties; Chapter 9 institutions looking after the public interest; a free media; and various existing laws.

It is also unlikely that the appointment of a single person as Chief Justice alone could serve the interests of the ruling party and its leaders. The Chief Justice does not function in isolation or outside the bounds of a variety of rules and conventions. He or she cannot arbitrarily make executive decisions that subvert the cause of justice. A sound framework of rules, conventions, precedents and laws is in place.

Other questions

What about the questions of best candidate, or a deeper underlying problem?

President Zuma’s spokesman, Mac Maharaj, in a statement made an impassioned and well-reasoned plea on behalf of Zuma for Mogoeng to be spared the indignity of an unfair public debate around his suitability based on experience.

He pointed out that the appointment is the prerogative of the president; that the candidate need not have experience as a Constitutional Court judge or even as a judge, but could come from academia or other parts of the legal profession, as had previous Chief Justices; and that experience and seniority is not a requirement.

It would appear – according to reports quoting two unnamed judges and an advocate – that Mogoeng was not Zuma’s first choice as three other Constitutional Court judges had turned down his offer of the position.

Nonetheless, Maharaj pointed out that Mogoeng “has been a judge since 1997 and is far senior in terms of judicial experience than most judges who are in the Constitutional Court currently, with the exception of Justice Johan Froneman who was appointed as a judge in 1994, and Justice Edwin Cameron who was appointed in 1995.” He also has four years more experience as a judge than Deputy Chief Justice Dikgang Moseneke who was many people’s preferred candidate.

Maharaj also pointed out that Mogoeng, as a former Judge President of the North West High Court, is the only judge in the Constitutional Court with prior experience as leader of a court besides Moseneke’s role as Deputy Chief Justice since 2005.

One commentator however pointed out that while Judge Cameron had over 100 reported judgments on the bench, Mogoeng delivered only 10 reported judgments in his 10 years on the bench.

A wise move?

The question however remains that whether while Mogoeng seems to have sufficient experience, for which his critics are not giving him due credit, his nomination was necessarily a wise move.

Professor Pierre de Vos, who teaches constitutional law at the University of Cape Town, agrees with Maharaj on the constitutional criteria for appointment but points out that the ideal candidate should have a track record of unquestioned credibility, judicial temperament and pronouncements, and should be in sync with the prevailing judicial-democratic culture.

He points to Mogoeng’s “rather undistinguished credentials” in this regard, saying there should be pressure on President Zuma to appoint someone else with better credentials and who will instill greater public and professional confidence. Delving into the deficiencies of Mogoeng’s candidature, De Vos also points out that during his interview for appointment to the Constitutional Court, Mogoeng indicated that one way to enhance access to justice for ordinary citizens was to resurrect and promote traditional (tribal) courts where traditional leaders would presumably preside.  That would definitely not sit well with the legal establishment and would not be a great confidence booster for people who believe in upholding human rights.

That brings one to the role politics most certainly do play in such appointments. As De Vos points out: “In our system, political considerations will necessarily play a role in the selection of a Chief Justice. The President would surely be misguided if he appointed a jurist with whose views he and his party sharply differed. That is why no one would suggest, for example, that the President should appoint Deputy President of the Supreme Court of Appeal, Judge Louis Harms, as Chief Justice.”

Who was overlooked?

While it is most unlikely that the conspiracy-style politics dealt with above played a role, politics would almost certainly have featured in some or other way. The question arises whether it was the political leanings of the preferred candidate or maybe something else?

Perhaps in this regard one should consider not who was chosen, but  who was overlooked. Among the very few potential candidates who stand out are Judges Froneman, Cameron and Moseneke.

Both Froneman and Cameron are white, making their appointment while the judiciary is constantly being told to “transform” highly unlikely, even despite Cameron otherwise having the right political credentials.

Moseneke comes from a pan-Africanist political tradition, as opposed to the non-racial Charterist tradition for which the ruling ANC stands. Moseneke was also appointed to the Bench in 2002 by then President Thabo Mbeki, political arch-nemesis of President Zuma. It was also Mbeki who appointed Moseneke as Deputy Chief Justice in 2005.

To add to his “political baggage”, Moseneke later made the “unforgivable” remark in public that he works for the good of the people, and not for what the ANC wants.

He made this remark around the very time when Zuma was replacing Mbeki as ANC leader in something of a palace revolt in 2007... a time of great political intrigue and sensitivity. The ANC at the time publicly ex-communicated Moseneke, but later withdrew its condemnation.

As it would seem that these “political transgressions” by Moseneke are insignificant and should not count against him in his professional capacity, there could be some other reasons – not known in the public domain – why Zuma has now twice overlooked him for the job of Chief Justice, while most legal and political commentators outside the ANC want him appointed.

Zuma under the circumstances may have judged Mogoeng to be the least political choice. And, indeed Mogoeng carries no serious political baggage of any kind ... at least not until now.

Mantashe’s broadside

Probably not helpful was ANC secretary-general Gwede Mantashe also weighing in on the public debate and spuring a furious response from opposition parties by saying the Constitutional Court is “consolidating opposition to the government” and reversing the gains of democracy, and that some of its recent rulings against the State have been “suspicious”.

In respect of the latter he mentioned both the judgment on the disbandment of the Scorpions investigative unit and the ruling on section 8 of the Judges Remuneration Act, under which the former Chief Justice, Judge Sandile Ngcobo's extension of office was proposed. The Constitutional Court found both to be unconstitutional. Mantashe suggested the judges were interested parties in the appointment of a new Chief Justice and said the Constitutional Court might be positioning itself emotionally to reverse the Protection of Information Bill.

If Mantashe’s outburst reflects current thinking or belief in senior ANC circles in any way, those watching from the sidelines could easily be tempted to conclude that Zuma appointed Mogoeng in retaliation to the perceived blocking by the other Constitutional Court judges of his reappointment of Ngcobo – almost as “punishment” in that he overlooked possibly more experienced, and thus better suited, candidates from among their ranks in favour of Mogoeng.

However, it is hard to conceive that such petty tit-for-tat politics would have played a role in President Zuma’s decision to appoint Mogoeng, while, as Maharaja’s statement makes clear, Mogoeng is not necessarily a less deserving candidate than any other from among the serving Constitutional Court judges.

However, the upshot of this is that Mantashe – and all other politicians – should be very careful not to make such reckless statements about the judiciary which can so easily be interpreted wrongly, thus placing the maintenance of a sound relationship between an independent judiciary and the political executive in serious jeopardy and creating unnecessary tensions.

Something positive

In the final analysis, the factors behind Zuma’s nomination of Judge Mogoeng as his preferred candidate for Chief Justice are probably a combination of most of the factors looked at above.

While Zuma’s candidate does seem to have the necessary experience, the substance of that experience may be questioned by some. The process, however, seems to have fallen victim to a far deeper underlying problem than a mere – and highly unlikely - ANC or presidential conspiracy to have a yes-man in the job. That problem is embedded in the broader political realm of South Africa and the role the quest for transformation plays among other things.

In addition, while healthy and vigorous debate on the nomination is to be welcomed, it has also become mired in the petty politicking of too many ill-informed or agenda-driven commentators. And, fate also threw a few curved balls at Zuma. It seems whichever way President Zuma may have moved on this one, he would have found himself criticised form some quarter or other.

The one positive element that emerges out of the whole affair, however, is the knowledge that the system of checks and balances and the protection afforded by the South African Constitution and the dynamics of its democracy are simply too effective to allow serious political tampering with the effectiveness and the independence of something as important as its judiciary.

Stef Terblanche