Dear Comrades Gwede and Blade… Let's talk frankly
- Onkgopotse JJ Tabane
- 15 Jul 2015 (South Africa)
Upfront I want to agree with you that the judiciary is a site of struggle and what I am sharing with you in this letter does not in any way denigrate that. I agree fully that the judiciary needs to transform to reflect the demographics of our growing democracy. Engaging with the judiciary is the legacy that Mandela left us. One of his most powerful speeches was made from the dock where he stated he was willing to die for ideals of freedom.
(Not sure these days what some of our comrades are willing to die for. A subject for another letter altogether.)
Many historians have no qualms declaring this speech, spoken at the heart of the so-called palace of justice, the heart of the judicial system at the time, was the rock on which the new South Africa was born. Many progressive judges, who ruled in favour of the liberation movement, found in the law angles that made it possible for the movement to live another day. Fortunately, South African law, other than laws derived from Apartheid statutes, has an umbilical cord with what is known as common law. Law that is universal. In a sense you don't need a new law saying thou shall not kill; this is universally accepted. If this was not the case, you can imagine there would have been no place to hide for us at time.
Then there is a little thing called the rule of law. Since we seem to be developing sudden amnesia about what this means, let's refresh our memories. It is the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced. It is a principle of government by law. This, comrades, should be what always guides us. There are some among us, by the way, who believe they are above the law. They don't emulate Mandela, who we celebrate this week for his respect for the law among other things, such as not seeing himself as being above the courts, even when he was in office. A far cry from leaders who think holding office should protect them from the law.
But let me break down the constitutional supremacy matter for you, quite frankly...
The executive is not above the law.
The legislature is not above the law.
The judiciary is not above the law.
Your utterances unfortunately seem to suggest the executive can't be told how to govern and Parliament must be left alone by the judges. Otherwise there is an ‘overreach’ by the judiciary into the ambit of the legs of the state.
Let me repeat, slowly:
In fact, this is one arm of the state that requires what I term ‘judicial supervision’ or ‘oversight’ because the history of the state in South Africa is that of taking the law into its own hands. Our democratic state has not departed from this tendency if Andries Tatane's death and the Marikana massacre is anything to go by. More than 30,000 cases of executive failure or non-compliance have been reported to the Public Protector in the last two years alone. Various NGOs have had to go to court to force the executive to do its job, whether it is on the matters of HIV/Aids or education.
It is for this reason that the Constitution, and not the whim of the executive, bestows on citizens socio-economic and other rights. In other words, it is not up to the executive to give me my right to freedom of expression or my right to life. I have these rights regardless of the self-importance of the executive, derived from whatever electoral support they imagine gives them such power. So no matter how big the ruling party imagines itself to be, it cannot arrogate to itself to lord over access to these rights or curtailment of those rights either. The state is instructed by the courts every day to do the right thing not because of the special wisdom of judges but in fact the special wisdom of the founders of this democracy such as our first constituent assembly under the leadership of Nelson Mandela and the THEN-ANC.
These founders, these comrades in their wisdom are the ones we must blame if we feel that constitutional supremacy is now an inconvenience. They did this because of the horror of executive and legislative actions over the last few decades. And they said never never and never again… I don't imagine we have reached that Neverland, yet.
I am fortunately not aware of an ANC or alliance position that seeks to question the lawful arrangement that allows the judiciary to question or review executive actions. I have no idea what the legal basis of calculating what you have petulantly labelled “judicial overreach” comes from. Comrade Blade, you should know better. This new label has nothing to do with a well thought out comment on jurisprudence, case law or even common sense. I suspect it has more to do with your hatred for the judiciary. Sorry to put it that bluntly, but once upon a time you, comrade Blade, did not hesitate to label the judiciary as thieves. You said after losing a case back in 2008 "... there is no honour among thieves..." I think you have allowed this hatred for the judiciary to get the better of you because there is scant legal basis for trying to intimidate the judiciary when it points a finger at a government doing wrong.
Comrade Gwede, we suspect your sentiments are a result of the ‘sin’ committed by the Deputy Chief Justice, the one that cost him the top job on the bench. His sin was to speak frankly at his birthday party and say what everyone should be saying: that he is at the service not of narrow party political interests, but of the country as a whole. This inoffensive statement of integrity earned him the label of ‘counter revolutionary’ from your revolutionary self. I can tell you now that there is nothing anti revolutionary about what he said. What is anti-revolutionary is to think that judges must kowtow to a ruling party. They have no such obligation and in fact in our current poisoned environment of political patronage, it’s a welcome relief to hear a judge leave no speculation about his attitude towards such an expectation from our movement. We should never expect everyone to act like sheep... such an expectation breeds a sad state of affairs destroying all decent dialogue in our society.
Comrade Blade, it's also important not to distort what the courts have said. You summed up the judgment on the embarrassing events of SONA 2015 simply as, “They want the EFF to do whatever they want in Parliament”. This is pure fabrication. The court says the legislature cannot bring police in the house when they are experiencing any disturbance or disruption. They have never said the EFF can do as it pleases. The legislature must get its own act together. It is that simple. I know you want the EFF dead but let's kill them with the truth, not your imaginings.
This judgment underlines the fact that the legislature is also not above the law. This is one arm of the state that should respect the laws; after all they make these laws. And not just for others to obey. They must lead by example. The shenanigans of jamming signals or using strong-arm tactics don't belong in the august house where laws are created. Indeed it is not too much to expect those who write the law to be the first to obey it. Fortunately our judiciary understand this very well, hence many laws purportedly passed by Parliament can be overturned by the judiciary for being unconstitutional. Surely by doing so the courts have a say in the work of the legislature? Is this overreach? Or is it overreach only when in reaches out to the ANC’s tendency to pass the laws that don't meet constitutional muster, such as the law abolishing the Scorpions?
Comrade Blade, no one is asking you to shut up. Our public discourse will be a tad boring without your high, aesthetically pleasant voice. But what we need now is a high-pitched argument when we critique other arms of the state. You have to elevate your argument a lot higher, because no one has ever said judgments can't be challenged. In fact you can appeal these judgments all the way to the Constitutional Court these days and so if you, like Comrade Gwede, believe that the Western Cape (and North Gauteng) courts are biased, then go to another court of appeal. It really is that simple. But to paint all officers of the court with the same brush is not a cogent argument even if you were making a worthy argument about transformation or pointing out that you are somewhat aggrieved by judgments. You surely can't seriously be suggesting that courts need to be afraid to apply the law if the ANC is on the other side of it? We need to understand that courts are not a bargaining chamber where you can try a give and take approach: you found me guilty last week how can you find me guilty again? It's all about the facts; if our government constantly hires incompetent legal advisors who mislead it, that can't be the problem of the courts.
Indeed the judiciary is not above the law. That is why it is disturbing that our Comrade Nhleko was at it again... this time he says that there are some in the judiciary who are in cohorts with criminal elements or something to that effect.
Fresh from his Nkandla-head-in-the-sand show you would have thought our comrade would have been more circumspect. I don't mean to unnecessarily reprimand our comrade as you, Comrade Gwede, have already done that for all of us by calling him “reckless”. But I can tell you now, accusing judges of inappropriate conduct in a gossip session with staff is more than reckless for a minister of police. He must arrest these judges and have them prosecuted. After all even they are not above the law. No one is.
I hope these basics of our law can help all of us focus where it comes to the debates on the so-called ‘overreach’ by the judiciary. It doesn't exist. In fact I dare to call it an oxymoron. If you don't like a judgment, appeal it. Don't just label it, because when you do that you are likely to be ignored.
The courts have no business taking politics into account when faced with legal questions. That would be just plain wrong. But you, comrades, have been co-conspirators in the gamble with the reputation of our country, be it countenancing of the Guptas landing at Waterkloof Air Base, the welcoming of a war criminal into our country and then acting surprised when courts follow the law, or the trivialising of Nkandla scandal. It's my considered view that you are placing us on a slippery slope, on which our country could slide towards a banana republic.
If you look north, there are two things that collapse before something of a failed state becomes a reality: The harassment of a free press that you, Comrade Blade, seem to do with ease these days and now the intimidation of the judiciary, where you are dancing in concert with Comrade Gwede.
At least there is no ANC position on these views not in keeping with the Constitution that Mandela spoke of from the dock. So we live in hope that ANC members will debate these matters freely to stop the complacency before it is too late.
Onkgopotse JJ Tabane. DM
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