Opinionista Father Smangaliso Mkhatshwa 25 June 2015

We can’t afford a stand off between the judiciary and the executive

The judiciary is the last line of defence against any assault on the Constitution and erosion of the rule of law. Unlike politicians, judges do not contest for power or seek popularity when they discharge their responsibilities. Theirs is to protect the Constitution without fear, favour or prejudice.

However, the political response to some recent judgments has raised concern about their freedom to execute their functions without having to look over their shoulders. Statements from some politicians, which indicate they intend to tamper with the Constitution, have compounded this.

Some of the decisions handed down by judges from time to time inevitably exacerbate the tensions between the executive, the legislature and the judiciary.

This has prompted a response that the judiciary needs to be “reined in”. It has vindicated people who already feel there is a bias in what they call an “untransformed” judiciary – and they are now screaming, “We told you so.”

It is a serious indictment on the judiciary to be called unpatriotic and promoters of hidden agendas. To the best of my knowledge, there is no evidence to justify such allegations.

The “adverse findings” are, in fact, more of a reflection on the executive and the legislature than they are on the courts: They have embarrassed the executive and exposed the inadequacies of its legal and political advisors.

But rather than react spasmodically and demonise judges who are merely upholding the law, we need to debate more critically the constitutional relationships between Parliament, the executive and the judiciary.

We have two options: Either respect and uphold the Constitution and its provisions — or amend it. Throw your best brains at the courts to defend political positions taken by the executive or Parliament. Or put your energy into getting sufficient support for changes to the Constitution.

It is unhelpful in the extreme for the executive, judiciary and Parliament to be sniping at each other in public. The danger with such a situation is that the government may inadvertently drive a wedge between perceived “sweetheart judges” versus “untransformed judges”.

The irony, of course, is that we, the new democratic South Africa, appointed our current judges. Since the ruling party has access to the best legal brains in the land, I fail to see why those brains are denied to the president or the executive.

It is unacceptable for legal and other advisors to make the head of state vulnerable to legal challenges. The same applies to Parliament. The ruling party should set the national agenda not just by using its majority but by providing leadership and brainpower, which the ANC has in abundance.

The country cannot afford a standoff between the executive and the judiciary. Members of Parliament who passed our Constitution in 1996 were intelligent and wise. The international euphoria which greeted our most progressive Constitution in the world confirmed our genius. For anyone to dispute the powers and responsibilities of the three arms of the state boils down to cerebral laziness – or irresponsible thirst for power. They should rather be more concerned about how best to complement one another for the good of the country.

The judiciary is not infallible. It is not God – as we have been reminded, almost ad nauseam. Its duties are clearly spelled out in the constitution. To usurp the powers and functions of the executive would not only be unconstitutional, it would be irresponsible.

Politicians, good or bad, do not always like judges whose decisions seem obstructionist. Whilst the constitution has given the judiciary freedom to do their job in the best interest of the country, politicians secretly wish the judges to rule in their favour. Hence the tension we are experiencing of late.

A few worrying lapses have occurred – for example, politicians ignoring court decisions, the al-Bashir saga, and judgments in favour of the DA or the EFF. The good news is that so far the ruling party has respected and protected our Constitution. They are aware that South Africa boasts a highly politicized and educated citizenry. To tamper with the most progressive Constitution in the world could have dire consequences.

Parliament makes and passes laws to ensure good governance. As is the case around the world, members of parliament have their own agenda in passing certain laws. The assumption is that the laws are meant to promote and guarantee the common good.

The constitution gives the Constitutional Court the power and responsibility to pronounce on the legality of any new laws referred to it or contraventions not dealt with by other arms of the judiciary. The executive then uses the laws passed by parliament with concurrence of the judiciary to govern the country for the welfare of all citizens.

The day we betray that distinction, the country will begin to degenerate into anarchy or modernized fascism.

Of course, the tensions between the government and the judiciary are not unique to South Africa. There is almost an element of inherent contradictions. As far back as 1651 Thomas Hobbes, a political scientist in his Leviathan said, “in the first place, I put for a general inclination of all mankind, a perpetual and restless desire for power after power that endeth only in death.”

Drawing from the wisdom of other constitutions, ours sought to curb power by dividing it between the three clearly defined arms of government to act as checks and balances. Other presidents and governments before us have also attempted to tame judges. There was always stiff resistance against such machinations because people knew that to tamper with the judiciary is tantamount to making all the citizens vulnerable to the whims and fancies of power thirsty politicians.

Noam Chomsky had this in mind when he warned, “The most effective way to restrict democracy is to transfer decision-making from public arena to unaccountable institutions: kings and princes, priestly castes, military juntas, party dictatorships or modern corporations…”

The day the judiciary is perceived to be the play-thing of powerful politicians, South Africa will be in big trouble. Politicians come and go – but the judiciary as a permanent institution should ensure stability and credibility of the system.

There was such a hullabaloo when Chief Justice Mogoeng Mogoeng was appointed. The outcry was not against him as a person; rather, it was around his ability to be truly independent, free and fair in his work. The people demanded someone who could provide unquestionable leadership, someone who has unquestionable integrity, courage and experience. Our Chief Justice seems to have passed the test with flying colours.

Any banana republic must, of necessity, first corrupt the justice system. Once you do that, courts and prosecuting authorities are reduced to a charade to protect criminals, political mobsters, the rich and the powerful. DM

Mkhatshwa is chairman of the Moral Regeneration Movement (MRM).


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