Assault on judiciary – dangerous times 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.

In recent weeks the “war” between South Africa’s judges and the country’s political leadership has intensified dramatically, with no-one less than President Jacob Zuma apparently firing the latest salvo and none other than his old “foe,” Deputy Chief Justice Dikgang Moseneke, attempting to defend the judiciary.

The ANC’s assault on the judiciary started about a decade ago but was intensified dramatically around the time of the 2007 national conference of the ANC held in Polokwane. It was at this event that President Zuma was first elected to lead the ANC. He replaced Thabo Mbeki, who was ousted in a palace revolt engineered by Zuma with the support of the ANC Youth League, the Congress of SA Trade Unions and other key elements in the ruling Alliance.

At the time Zuma was not yet president of the country and he was still facing criminal prosecution for alleged corruption related to South Africa’s R30bn strategic arms procurement programme.

Polokwane resolutions

In Polokwane the ANC resolved, inter alia, 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.” (Emphasis added)

The ANC also said that this and other measures of transformation of the judiciary “must be urgently implemented by the end of the present term of government”. The warning bells should have been ringing loudly and is the background against which the latest developments should be judged.

Ironically – or perhaps not – it was the media that played a massive role in exposing the deep-running corruption in the arms deal, while several courts had frustrated Zuma’s long-running bid to avoid prosecution until it was eventually dropped on a technical matter rather than the substance of the charges against him, paving the way for him to become state president.

It was also at this time that Justice Moseneke remarked that, as a judge, he worked for the good of the people and not for what the ANC wants. It was a remark that angered the ANC and its leaders, with Zuma later indicating that he would 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 who instead appointed the relatively inexperienced and somewhat controversial Justice Mogoeng Mogoeng.

The Mbeki era

The ANC’s attack on the judiciary, however, started during the Mbeki era. This included draft bills in 2005 which threatened the independence of the judiciary and would have allowed the government to exert greater political control over the judiciary. The issue led to a fierce confrontation between judges and members of the executive at the time.

The draft bills came hot on the heels of the ANC's January 8 statement that year 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.

But since the Polokwane conference the Zuma era has also been substantially characterised by attempts by the ruling party to limit the space in which both the judiciary and the media are able to function.

In the case of the media it has been the legal and constitutionally protected space in which it operates that the ANC has been trying to reduce. In the case of the judiciary it is its constitutionally created ability to independently criticise and order rectification of illegal or unconstitutional actions, policies or legislation by government that is under attack.

Since about the time when Zuma was fired as deputy president by Mbeki following the Schabir Shaik corruption trial – in which Zuma was frequently implicated – and after the National Prosecuting Authority (NPA) charged him with corruption, the ANC frequently criticised and rejected judgements by the courts when they went against the interests of the ANC, its policies and legislation or against some of its individual office bearers. This worsened after the 2007 Polokwane conference.

Particularly fell have been attacks on the judiciary from the ANC Youth League (ANCYL), which in 2007 was instrumental in Zuma’s rise to power. The ANCYL not only criticised court decisions that went against Zuma in his corruption case, but also later itself completely ignored some court judgements against it or its leaders.

In April 2009 President Zuma accused Justice Moseneke of declaring war on the ANC and indicated he would “be very sensitive” to considering Moseneke for appointment to Chief Justice after Moseneke’s statement that he was not there to serve the ANC as a judge. Zuma added that “judges should know what they say.

Judicial Services Commission

At the time, in an interview with The Star newspaper Zuma also said he wanted the Judicial Services Commission (JSC), which appoints judges, to review the status of the Constitutional Court because he believed its judges were capable of committing mistakes.

“I don't think we should have people who are almost like God in a democracy... Why are they not human beings,” he said. It may have been no coincidence that not long after that, new members were appointed to the JSC who were seen to be well disposed towards Zuma.

The JSC is pretty much a politically loaded instrument controlled by the ruling party: fifteen of its 23 members (25 when considering matters relating to a specific High Court) are political appointees, while only eight come from the legal fraternity.

In the meantime the Zuma-led government scrapped the Scorpions; reconstituted the NPA and appointed a new prosecuting head widely regarded as being subservient to Zuma; brought various ANC appointees into the JSC; introduced more policy papers and legislation that would bring further changes to the courts; appointed a new Chief Justice; and stepped up is verbal battering of the judiciary.

In July last year the National General Council of the ANC, meeting in Durban, again reiterated the ANC’s intentions to drastically “transform” the judiciary.

Again it was perhaps no coincidence that at about the same time, the newly appointed Deputy Minister of Police, Maggie Sotyu, took it a step further by accusing white judges and magistrates of racism, saying there were many examples – but which she could not remember - where they issued lighter sentences to white criminals than to blacks. Despite the facts, used by Sotyu to back up her attack, being grossly inaccurate, this did not elicit even a squeak of condemnation from the ANC or the government.

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 in terms of legislation that several years ago was heavily criticised for its threat to judicial independence. The Ngcobo judgement 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.

After these developments the deputy correctional services minister Ngoako Ramatlhodi, himself an advocate with the Bar of Lesotho and one who carries much weight in the Zuma-dominated ANC since his fall from grace under Mbeki, reportedly said that the Constitution “represented an overly generous concession by the ANC during the constitutional negotiations.” This has obvious negative connotations also for the role of an independent judiciary.

Also weighing in on the public debate, ANC secretary-general Gwede Mantashe sparked 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.”

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, a piece of legislation that will muzzle whistle-blowers and the media and has elicited unprecedented public opposition. Mantashe has also in the recent past levelled other, harsher criticisms against the judiciary.

And, in a statement on the Mogoeng issue, the ANC’s ally, the South African Communist Party (SACP), said that the judiciary remains untransformed, serving “right centrist liberal” class interests, and that the representatives of this class in the judiciary make rulings to protect their class interests.

These are dangerous and unsubstantiated inferences to make that unnecessarily aim to subject the judiciary to public suspicion and add unwarranted tensions to the relationship among the three arms of government.

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

And, when Zuma in late September briefed the ANC’s national executive committee (NEC) on his decision to appoint a commission of inquiry into the controversial multibillion-rand arms deal to prevent the Constitutional Court from taking charge of the matter – the court is apparently about to give judgement in a case that would force Zuma to appoint a judicial commission of inquiry - he is said to again have reiterated his desire to have the powers of the judiciary reviewed.

According to the Mail & Guardian several unnamed sources confirmed this. Zuma apparently told the NEC that 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 in which the ANC obtained about two-thirds of the vote.

If true, this shows up a serious flaw in President Zuma’s understanding of the concept of the separation of powers, the role of the judiciary, the rule of law and the fundamental elements of South Africa’s constitutional democracy.

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. A good example of this is the recent court case in which Justice Colin Lamont of the Gauteng High Court upheld a previous court judgement 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) and declaring it hate speech.

As one commentator put it, “the judge dashed in where judicial angels should have feared to tread” in this highly sensitive political case. Without trying to judge the judge and his judgement, many commentators did point out some problematic anomalies in the judgement, and Judge Lamont himself admitted another court might come to a different conclusion than him when he granted Malema and the ANC permission to appeal his finding.

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. Incidentally, the new Chief Justice, Justice Mogoeng Mogoeng, appointed by Zuma after a Zuma-friendly JSC confirmed his nomination, has to date refrained from saying anything about these developments.

In his defence of the judiciary Moseneke, delivering the annual Claude Leon human rights lecture at the University of Cape Town, said that every judge of the Constitutional Court approached his or her work with "remarkable sincerity".

"There is no place for attacks on judges suggesting an arcane dishonest agenda against the government," he said.

Responding perhaps to Zuma’s criticism of the powers of the judiciary over those of the political arms of government, Moseneke said that all judges knew they had to find that "rich equilibrium" between constitutional supremacy and the will of the people and often “do so admirably”.

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

Judge Moseneke said that under the Constitution government actions are scrutinised in accordance with the principle that "reasonable regulation" was acceptable, but anything going beyond that was "invalid". The will of the majority as given expression by its elected representatives, he said, must be given effect as long as it was in accordance with this principle. He said it could not be claimed that the power of Parliament and the executive was everything

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 would require an amendment to the Constitution, something that is within reach of the ANC with its current majority in Parliament.

At this point it seems certain that the assault on the judiciary – and therefore by direct implication on the Constitution itself - will 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 democracy.

Stef Terblanche