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ANC is paying mere lip service to judicial independence

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Mmusi Maimane is leader of Build One SA.

Last week Chief Justice Mogoeng Mogoeng took the bold move of hitting back at the increasing number of attacks on the judiciary by government and the tripartite alliance partners. In a statement issued on behalf of all senior members of the judiciary, Mogoeng stated that “the Rule of Law is the cornerstone of our constitutional democracy. In simple terms it means everybody… is subject to and bound by the Constitution and the law. As a nation, we ignore it at our peril.”

In an attempt to mitigate the damage to the executive caused by Mogoeng, both President Jacob Zuma and Deputy President Cyril Ramaphosa came out in support of judicial independence in the days that followed. These are hollow commitments, however, considering that the recent debate was precipitated by the decision by the executive to ignore a High Court order when it allowed Sudanese president, Omar al-Bashir, to escape South Africa on 13 June.

A commitment to judicial independence is reflected through deeds, not words. Yet the decision to allow al-Bashir to escape was not an isolated incident, and was merely the most recent display of the contempt for the judiciary by Zuma’s administration. The manner in which the Presidency has dealt with Nkandla, and specifically the disdain shown for the Public Protector, is reflective of a generally negative disposition toward constitutionalism and the rule of law.

This negative disposition has been echoed by the alliance partners, most recently in a statement issued after their summit on the 1 July. In the statement, ANC secretary general, Gwede Mantashe, expressed concern “at the emerging trend, in some quarters, of judicial overreach” and “that the judgments of certain regions and judges are consistently against the state”. These concerns, the alliance argued, “[brought] into question the very fundamental principle of separation of powers on which our democracy rests”.

This reflects a very warped understanding of that “fundamental principle”. The separation of powers is fundamental to democracy precisely because it serves a system of checks and balances that prevent any one branch of government – albeit the executive, judicial or legislative branch – from gaining excessive power and abusing it.

The concept that the courts should serve as a last resort to challenge decisions made by the state is the very definition thereof. Left unchecked by the judiciary the executive would have free rein to ignore the Constitution and violate the rights of citizens.

An independent judiciary is key to the value of fairness that underpins the DA’s new Values Charter together with freedom and opportunity. In a fair society, justice must be applied to all in a consistent and equal manner. In a fair society, no one, including the president, is above the law. It is precisely for his violation of this principle that the DA is now fighting in court to have the 783 charges of fraud, corruption and racketeering reinstated against Zuma after he used his political power to have them dropped in 2009.

It is worth noting, however, that a true belief in the separation of powers requires more than just a belief in an independent judiciary, it requires an inherent belief in non-interference between the three branches of government. Zuma’s administration has shown a clear disregard for this concept not only by compromising the independence of the courts and the National Prosecuting Authority (NPA), but also by compromising the independence of Parliament – the legislative branch.

Whether exemplified through the bias of the Speaker of the National Assembly, Baleka Mbete, or the use of the state security apparatus to deploy signal jamming devices in the House during the president’s State of the Nation Address in February, the concept of separation powers is moot in the ANC of today.

The al-Bashir matter, the spy tapes saga, and the failure to hold the president to account for Nkandla are all indicative of an ANC that believes that its majority entitles them to bend the law to their will. These examples not only indicate a disdain for the judiciary, but a larger belief that the interests of the ANC supersede the Constitution.

In the coming weeks the DA will be announcing actions aimed at firewalling the judiciary and other key institutions against interference by the executive, including proposed changes to the composition of the Judicial Services Commission (JSC) that aim to depoliticise it and providing for the inclusion of the National Assembly in the appointment of the head of the NPA as opposed to the president alone.

Herein lies the real clear blue water between the DA and the ANC. While the ANC pays lip service to the Constitution, in reality it continues to flout it at every turn. The DA by comparison has shown our unwavering respect for the supreme law of our land, and our willingness to lead the charge in its defence. DM

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