The President vs The Judiciary: place your bets now
- Stephen Grootes
- 05 Dec 2011 (South Africa)
After a long period in which parts of the ANC, government and President Jacob Zuma himself have been on the offensive against the judiciary, the judiciary struck back last week. The ruling on National Director of Public Prosecutions, Menzi Simelane, was a broadside against the Zuma project, which seems to be to protect himself at all costs. Those parts of the ANC (Zuma, Ngoako Ramathlodi, some others) are clear they are tired of judges stopping them from what they are doing. The judiciary, through the Simelane judgment, has hit back. Now that the battle lines have been drawn, how are both sides going to play this game? By STEPHEN GROOTES.
What we have now is a clear playing field. Zuma has no love for judges. He claims, repeatedly, that they should not interfere with the legislature. In his view, because the ANC has been voted into power by the mass of our people, the judges shouldn't stop him, as the ANC leader, from implementing policy. Which isn't exactly true: generally speaking, the judges haven't stopped the government from implementing policy. What they've done is to stop very specific government acts that have nothing to do with the implementation of the ANC’s election mandate: improving the lives of ordinary citizens. Simelane was a particular appointment; no one in this argument has claimed he was the best man for the job because he has some super-skill set or experience. Zuma hasn't even bothered to try to make that case, because we all know that it's not true.
The Constitutional Court's Scorpions ruling in the Glenister case is also not about government policy per se, but about one particular act undertaken by the ruling party. And it doesn't even turn the clock back on the Scorpions; all it does is to say that the head of the Hawks must be made fully independent. Zuma can still have his way, by making sure he selects the head of the Hawks carefully.
Government's response has been to set up a commission to "study" the judiciary, its transformation and whether it was living up to the goals outlined for it in the Constitution. Those who say we should be very afraid are absolutely correct. This is another front in this particular battle. Clearly Zuma and co. are girding their loins for something.
But so what if they do? What are they really able to do about it at the moment? The short answer is not a huge amount, but that doesn't mean we can rest easy.
First, the ANC simply doesn't have the two-thirds majority it would need in Parliament to change the Constitution. Often that hasn't been a problem because of the smaller, Africanist in philosophy, parties that tend to vote with it on some issues. However this would be different. The fight against the Protection of State Information Bill shows us, that when they want to, opposition parties really can work together. And to change the Constitution in a way that would lessen the powers of the Constitutional Court would be very dangerous to the smaller parties, in the same way as the Info Bill. So, until 2014 it would seem, that is not a viable option.
Bear in mind also, that a big offensive action against a Constitution that the ANC negotiated, and was signed into law by Nelson Mandela, would be a difficult fight within the ANC itself. And that's before Cyril Ramaphosa, who is no doubt fairly attached to it as one of its authors, starts to weigh in.
Then you can imagine the possibility for resistance within the Alliance. Not so much from the Stalinist SACP, but from Cosatu. They would be difficult to tame. Particularly when they have rely on the Constitutional Court to protect them from the Info Bill that they are so outraged about.
So then there are other options. Zuma can pack the court with his own people: this he has started to do, and it could get more interesting. The place on the Court vacated by former Chief Justice Sandile Ngcobo is still open. Judge Zac Yacoob will have to make retirement plans soon. Should there be an early retirement, perhaps by a frustrated Deputy Chief Justice Dikgang Moseneke, then Zuma's problem could start to go away. The Judicial Service Commission already appears to have been tamed by the ANC.
Then there's the possibility the ANC, well government, those levers of state power controlled by Zuma, could just ignore a court ruling. There are two ways to do this –blatantly, and quietly. Once a case has gone to the Constitutional Court, it's pretty difficult to keep things under wraps. But high court orders against the state generate far less attention. And the litigants could just eventually give up and go away, or even die (Irene Grootboom, for whom the Constitutional Court ruled that people have a right to housing, died years after the ruling. Still homeless. Alex Carmichele, who won a ruling and damages after being assaulted by a man charged with a similar offense but for which the prosecutor didn't bother to argue against bail, waited years for her payout.) You can just wait them out if you don't want to do something. But on the quiet.
Shouting and blustering if government would not obey a court ruling would be harder to do. But we have to look at what would happen if that did occur. Say the ANC government was ordered to withdraw the police from a siege around the DA's headquarters (a fanciful example Stephen – Ed). What would happen if officers just stayed there? Who could enforce that order? No one, really. Because the ANC has deployed its people to the police's top brass – not with great results for the fight against crime. Hell, the police don't even enforce court orders against violence by strikers. How would they enforce orders against the ANC itself?
Amd yet, South Africa is a diverse, vibrant society. The net effect of a real big bust up between Zuma and the judiciary would be to speed up the process of "political class-ification". As opposed to the political racial-isation we have now. In other words opposition to the ANC would grow. We would probably see a more coherent, more legitimately black opposition to the ANC emerge. (You know, what Cope was supposed to be, but isn't.)
The only way then for Zuma to keep things under control would be to rig the Independent Electoral Commission. That seems quite hard to do. Firstly, its systems are so transparently designed, with such clever use of technology, that anyone wanting to do that would have to rig them from the ground up. That would take a while, and someone would talk. You would have to throw out everyone who's currently in the organization, which would lead to a massive public bust-up. At the same time, there's the politics within the ANC to consider. It would seem that every time the party does something that may be inimical to the interests of democracy, some of its support ebbs away. It would be a major risk to muck around with the basic tenets of our state.
But the big difference between us and the countries which underwent Tunisian-style revolutions was the fact we have freedom of expression, and the vote. And don't forget, there's a reason why our voting queues are so long: people want to vote, they know how important it is. Public anger and frustration might not be easily contained should a belief that the counting was cooked take hold.
It does appear that we are in for a rough ride. A war between the president and judges would seem inevitable when that president would appear to have a case to answer in court. But Zuma is using judges himself. The Arms Deal inquiry is being headed by judges, and it's probable he will like the outcome they come back with. The politics of the ANC is such that we are likely to see some big new issue spring onto the stage in the near future (the Oilgate Report is due out this week). But the outcome is by no means certain either way. DM
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