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But wait, there’s more: The ‘transformation in the judiciary’ is back again

Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession. He appears in these pages as a political correspondent.

Last week, presidential spokesman Jimmy Manyi dropped something of a bomb in the middle of a post-Cabinet meeting briefing. Apparently Constitutional Court decisions are going to be “assessed” by a reputable research institution, for the benefit of the Cabinet, one presumes. He has left the details up to the Justice Department to explain, but it does seem like we’re about to shake the rocky and narrow ground between judicial independence and transformation once again. Given the current administration’s record on the subject, I’m not filled with confidence.

The presidential spokesman – or the Cabinet which issued him forth to the press to speak in its stead – does have terrible timing. On Thursday, a day after the upper crust of the executive arm of government met, Jimmy Manyi announced that a “reputable research institution” would conduct an assessment of the Constitutional Court on the “transformation of the judicial system and the role of the judiciary in a developmental state”.

The research is supposed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables,” Manyi’s statement said. “Secondly, access to justice on all levels of the courts from lower courts through to Constitutional Courts. Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realise transformation goals envisaged by the Constitution.”

Not two days before this, the National Assembly in Parliament passed into second reading the Protection of State Information Bill, seen by all-too-many as being a threat of citizens’ freedoms. The opposition parties went on record in Parliament to say that they would oppose the POIB in the Constitutional Court, where they believed it would fail several constitutionality tests.

The timing of the two incidents was too much to resist for some – this was a clear indication that the executive arm of the government had had enough of the judiciary telling it what it could and couldn’t do, and was heading it off before the POIB reached Constitutional Hill.

DA spokeswoman on all matters judicial (and frightening Helen Zille look-alike in person) Dene Smuts said, “It will inevitably be seen as a sinister attempt to bend the bench to the executive and the ruling party’s will, especially given the recent spate of hostile comments from such persons as ANC secretary-general Gwede Mantashe and Deputy Correctional Services Minister Ngoako Ramatlhodi, and the fact that it is common knowledge that certain judgments are unpopular with the ANC.”

This fear won’t be confirmed until we see moves being made in Parliament to rewrite laws concerning the judiciary. However, I would like to give the Cabinet the benefit of the doubt for now, and assume that the proposed assessment is in no way nefarious or sinister.

The idea that the judiciary is unreconstructed or transformed weighs on the minds of many. At the Black Management Forum’s annual general conference a few weeks ago, the former special advisor to the defence minister (and erstwhile fugitive from Connecticut bounty hunters) Paul Ngobeni went on at length about the issue, suggesting rather unsubtly that there was a clear pattern of unfairly harsh scrutiny on prominent black members of the judiciary, and unfair treatment by the justice system of black suspects.

He mentioned that Mogoeng Mogoeng had received unfair treatment because of his skin colour, as he shared many so-called objectionable traits (such as his strong religious beliefs) with other Constitutional Court justices such as Zak Yacoob (who is a Muslim). Ngobeni also said that Jackie Selebi was clearly the victim of some race-based prejudice during his trial, because both the presiding judge and the prosecutor didn’t recuse themselves for allegedly being personally involved in the trial. The former advisor didn’t delve into the real reason why Selebi was in court to begin with.

Ngobeni wasn’t as forthcoming with a cure for this as he was with his complaints, but the insinuation was there – if the judiciary became more “transformed”, we’d see fairer treatment of black people under the law.

Both the ANC secretary general Gwede Mantashe and President Jacob Zuma have made pronouncements about the ambit of judicial power, and have both expressed disquiet at what they perceive to be the judiciary’s attempt to encroach on legislative and executive powers not vested in them.

“Once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the executive area of government,” Zuma once said.

Mantashe has made similar noises in the past.

It is interesting to note that while the ANC did make a resolution on the transformation of the judiciary at the Polokwane elective conference, the resolution itself focuses much more on access to courts than it does on perceived bias against black people. The Polokwane Resolution on the judiciary actually takes a broad and not unfavourable view on what transformation in the judiciary should mean. But even that document says “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 idea that the transformation of the judiciary must not threaten its independence has been the subject of countless talks and academic papers.

Speaking to the Wits School of Law in 2009, former Constitutional Court justice Johann Kriegler grappled with the issue (this was in the wake of the Judge John Hlophe scandal) where he repeatedly hammered the point home: judicial independence is more important than transformation.

He said, “The whole constitutional undertaking [of a perfect balance of powers] will collapse unless these three centres of state power are kept intact and alive and in equipoise with one another. Which means, of course, that judicial independence may not be sacrificed on the altar of transformation. However important transformation, judicial independence must always survive.”

And in response to the resolution taken at Polokwane, the judge said, “You’ve got to know where the boundaries are if you’re a judge. And at the same time, when you are a politician dealing with a judge, you’ve got to know where the limits of your powers are and where you must leave the judiciary to find its own direction, to exercise its own powers.”

The lines are probably going to be drawn up along similar patterns in the upcoming skirmish. When pressed on what exactly Cabinet meant by this week’s announcement, Manyi said that the Justice Department would be hosting a press conference soon on the issue. But it already seems like we’re going to have another judicial independence vs transformation battle. Which is a pity, because the two needn’t be mutually exclusive. The ANC recognised this in Polokwane.

But the tendency by certain apparatchiks within the Zuma administration to see the judiciary as being just another government department looms ever larger. I submit to you, dear reader, that should we as a country get this particular debate all wrong, it will be a much bigger threat to us all than the Protection of Information Bill ever could. DM


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