Judiciary staring down a barrel

The constitutionally guaranteed independence of South Africa's legal system and the political impartiality of the Judicial Service Commission (JSC) continue to be threatened as the legacy of the controversial legal dispute surrounding Western Cape Judge President John Hlophe continues to stoke a crisis in the JSC. In the latest incident, a third candidate to fill vacancies on the Constitutional Court bench has withdrawn. But the judicial-political fault line runs much further back - all the way to South Africa's corruption-riddled multibillion-rand arms deal. 

The recent developments around the judiciary did not simply begin with a spat between Judge Hlohpe and his colleagues in the Constitutional Court. Its roots go back some way.

In fact, it represents a serious fault line running through the South African political-judicial sphere ever since the government's controversial and severely compromised multibillion-rand arms acquisition led to corruption charges being brought against President Zuma, among others.

The credibility and integrity of the JSC has been impaired severely by the more recent developments that began when Hlophe allegedly attempted to influence two Constitutional Court judges in matters regarding the corruption charges against President Jacob Zuma, which have since been withdrawn.

All the judges of the Constitutional Court collectively asked the JSC for a formal inquiry into Hlophe's conduct.

The JSC in the meantime had several new members, said to be aligned to Zuma and Hlophe, appointed to its ranks by Zuma. Following these appointments, the JSC eventually made a highly controversial and contested decision not to hold a formal inquiry into the dispute between Hlophe and the Constitutional Court judges despite finding that his actions had been "improper".

Members of the legal fraternity criticised the decision, as did opposition political parties. And Johann Kriegler - a respected retired judge of the Constitutional Court and chairperson of the organisation, Freedom Under Law - announced his decision to challenge the JSC ruling on Hlophe and urged the JSC to review it. When the JSC failed to reply to Kriegler's letter demanding that the JSC supply reasons for its decision, Kriegler announced he would take the matter to the High Court.

These developments around Hlophe and the JSC, in turn, impacted negatively on a process that was under way whereby the JSC has to fill several vacancies in the Constitutional Court, as well as that of a new Chief Justice by the president.

A group of Hlophe supporters within the legal fraternity - again believed to be politically aligned to Zuma - began agitating for Hlophe to be the next Chief Justice. However, the lingering controversies involving him have put paid to that for now.

President Zuma then unilaterally nominated Judge Sandile Ngcobo as his preferred candidate for the position. The very able and experienced serving Deputy Chief Justice Dikgang Moseneke - the favoured candidate of much of the legal fraternity and all opposition parties, and possibly the wider public's choice, too - was ruled out by Zuma.

President Zuma gave no reason, but it is believed this was due to the fact that Moseneke had seriously fallen from favour with the ruling ANC months before, when he remarked at a private function that as a judge he served all the people of South Africa and not a political party. Neither has Moseneke ever been politically aligned to the ANC.

Zuma's nomination of Ngcobo immediately led to a howl of protest from opposition parties that said Zuma had not consulted them in the matter, as is required by the Constitution. Afterwards, four opposition parties rejected President Zuma's explanatory claim that he had not yet made up his mind about who to appoint as Chief Justice and that he had merely nominated Ngcobo as a possible candidate.

Meanwhile, the hearings forming part of the process to appoint new judges to the Constitutional Court became mired in controversy. Former Judge Kriegler said publicly that the interviews were "impaired" because of the JSC's decision in the Hlophe dispute. He said he had been approached by five candidates who had wanted to withdraw, but had managed to persuade four of them to stay in the process.

Subsequently, three candidates withdrew from the hearings. Judge Robert Nugent withdrew after telling Kriegler he was not "prepared to submit his candidacy to the deliberations of people he does not trust". Judge Belinda van Heerden withdrew before the JSC's decision in the Hlophe matter. And this week, Judge Shehnaz Meer of the Western Cape High Court and Land Claims Court withdrew her candidacy without citing reasons. (For full report, click here)

These developments represent a serious fault line running through the South African political-judicial sphere ever since the government's controversial and severely compromised multibillion-rand arms acquisition led to corruption charges being brought against President Zuma, among others. Neither matter has ever been resolved conclusively, with three ANC governments in a row refusing steadfastly to officially probe the arms deal, and Zuma beating his corruption charges on technicalities - causing them to be withdrawn.

But the prosecution of Zuma, initiated during the rule of his predecessor Thabo Mbeki - who had also fired Zuma as deputy president - was viewed in Zuma-aligned ANC circles as a political persecution of their champion. The Zuma faction staged a palace revolt, seized control of the ANC at its 2007 national conference in Polokwane, elected Zuma president of the ANC, and went on to purge the ANC of pro-Mbeki people.

The Polokwane conference also resolved to disband the investigative unit known as the Scorpions - which had investigated and charged Zuma - and to "transform" the judiciary, which in turn had on more than one occasion ruled against Zuma in his ongoing battle not to have to face criminal charges.

While the "legacy of apartheid" and a resulting skewered South African judicial entity was cited as motivation for its further transformation, the truth is that these factors had already been addressed to a very large extent and that the judiciary had already progressed extensively in its transformation.

A large number of judges (if not the majority) and most administrative officials are from the racially designated previously disadvantaged groups - blacks, Indians and coloureds. Administratively and geographically, the courts were also restructured and renamed to reflect the democratic dispensation that came after 1994. A number of highly respected ANC "struggle heroes" serving in the judiciary have never disputed this or sided with the post-Polokwane call for transformation - at least, not publicly.

Nonetheless, following directly from the ANC's Polokwane conference resolution, legislation was introduced in Parliament that sought to curtail the independence of the judiciary and bring it directly under political (read ANC) control; the Scorpions were disbanded; the JSC was filled with Zuma appointees; Zuma nominated Ngcobo for the position of Chief Justice; and the Hlophe decision followed.

The ANC's call for transformation became particularly loud every time a court decision went against Zuma or the ruling party. When decisions went in their favour, the courts were praised and held as examples of a fair and independent judiciary.

The judiciary is not the only area of contention. A similar encroachment developed in respect of the freedom of speech and the media - another key democratic institution supposedly guaranteed in the Constitution. This, too, gained momentum as the ANC developed a dislike for anything negative about its president, Jacob Zuma, being published during his long drawn-out battle to avoid facing criminal charges of corruption in court.

The calls for "better regulation" of the media also became particularly virulent whenever anything at odds with ANC policy or views was published. Eventually this resulted in legislation that now subjects the media to self-censorship, although the resolution adopted in respect of the media at Polokwane seems to suggest that more may come. (See last week's Monday Briefing No. 1057).

Another matter of grave concern is that in all these developments - which have taken place since Zuma came to power - there has also been a corresponding blurring of the line between the ruling party and the State.

The JSC itself has reached a political crossroads. Any blatant replacement of the Constitutional Court's current bench of highly respected, independent and professional judges with persons suspected of being ruling party lackeys, will undoubtedly seriously jeopardise the independence and integrity of the entire judicial system.

There are previous examples that should serve to guide South Africa away from such tendencies. For one, under apartheid the ruling National Party did quite the same, although it at least always tried to maintain a facade of judicial independence. But where it was unable to fill the ranks of judges with loyal servants, it introduced restrictive legislation to curb judicial independence.

Neighbouring Zimbabwe should also be a good case in point. Here, too, the ruling party systematically removed independent-minded judges and replaced them with loyal party cadres until the rule of law and judicial independence disappeared altogether and the ruling party and its State security organs became a law unto themselves.

There is little doubt that the current trend of politicising the judiciary, legislating its further "transformation" into being - bringing it more firmly under political control - and filling key positions with cadres and comrades will continue. Just how far the ANC will go, remains to be seen.

But even limited political intervention of this nature places in doubt the independence, and thus the integrity, of a major cornerstone of South Africa's constitutional democracy. It places in jeopardy one of the only truly effective mechanisms to keep in check the abuse of political power, and in so doing, raises the potential for a more negative political risk outlook in South Africa.