Dangerous times lie ahead

The assault by the ruling African National Congress (ANC) on South Africa’s independent judiciary – as with the country’s independent media – is far from over. In fact it is about to get worse. And, by direct implication it is an assault also on the Constitution as the “war” between South Africa’s judges and the country’s political leadership has intensified dramatically in recent weeks.

The ANC’s assault on the judiciary started about a decade ago but was intensified dramatically around the time of the 2007 ANC national conference held in Polokwane that brought President Zuma to power.

In Polokwane the ANC resolved, among other things, that: “The judiciary must adjudicate without fear, favour or prejudice, but should also respect the areas of responsibility of other arms of the state and not unduly encroach in those areas.” The warning bells should have been ringing loudly.

At the time several courts were frustrating Zuma’s long-running bid to avoid prosecution. Also at this time Deputy Chief Justice Dikgang Moseneke remarked that, as a judge, he worked for the good of the people and not for what the ANC wants, angering Zuma and the ANC. Zuma later indicated that he may not consider Moseneke for the position of Chief Justice because of it. Moseneke was recently overlooked for a second time for promotion to Chief Justice by Zuma.

The ANC’s attack on the judiciary however started during the Mbeki era with draft bills threatening the independence of the judiciary and an ANC statement which held that judges should undergo a shift in their "collective mindset" so as to be accountable to the electoral "masses" rather than the Constitution.

After the Polokwane conference the criticism was stepped up and in April 2009 President Zuma said he wanted the politically loaded Judicial Services Commission (JSC), which appoints judges, to review the status of the Constitutional Court. In July last year the National General Council of the ANC also again reiterated the ANC’s intentions to drastically “transform” the judiciary.

ANC criticism of the judiciary was stepped up considerably this year after the Constitutional Court declared invalid the extended appointment of the then chief justice, Sandile Ngcobo. The Ngcobo judgment led to the controversy surrounding President Zuma’s subsequent appointment of Justice Mogoeng Mogoeng.

Criticism also greeted the decision of the court to declare unconstitutional the legislation that created the Hawks in the place of the Scorpions which had been investigating and seeking to prosecute Zuma for several years.

Following these developments, several ANC heavyweights, including deputy correctional services minister Ngoako Ramatlhodi, ANC secretary-general Gwede Mantashe, as well as the SACP, among others, made statements heavily criticising the judiciary and the Constitutional Court, and also the Constitution.

In a speech to the judiciary Zuma again unapologetically expressed his unhappiness with its role, indicating that he did not accept its interference in political matters of policy and legislation.

When Zuma last month briefed the ANC’s national executive committee (NEC) on his decision to appoint a commission of inquiry into the controversial multi-billion-rand arms deal to prevent the Constitutional Court from taking charge of the matter he is said to again have reiterated his desire to have the powers of the judiciary reviewed.

He apparently said the powers of the judiciary could not be superior to the powers of government and parliament which resulted from a mandate they were given by popular democratic elections. Meanwhile this past week the ANC parliamentary chief whip, Mathole Motshekga, warned the Constitutional Court to leave alone the laws made by Parliament.

Unfortunately the judiciary itself is not always its own best friend. This is demonstrated by Justice Colin Lamont’s recent  judgment against the ANCYL’s president Julius Malema prohibiting him, the ANC or anybody else from singing the so-called liberation song Dubul' iBhunu (Shoot the Boer). Judge Lamont himself has admitted another court might come to different conclusion.

Nonetheless, responding to these repeated and intensifying attacks on the judiciary, Deputy Chief Justice Moseneke last week hit back, saying there was no place for anyone to suggest that judges have an anti-government agenda.

He pointed out that the function of the Constitutional Court was "ultimately supportive of democracy" and it was charged with upholding constitutional protections that safeguarded democratic practices. He further held that constitutional supremacy was necessary to protect against abuse of public power.

However, both President Zuma and the ANC seem strongly intent on watering down the powers of the judiciary, especially those of the Constitutional Court. This is likely to intensify in coming months leading up to the ANC’s policy and national conferences next year. If these conferences indeed adopt further measures to weaken the judiciary, and are carried through, it will amount to a substantial undermining of one of the most effective elements of South Africa’s constitutional dispensation.

(This is an executive summary of a more comprehensive report, which can be read here)