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Lawfare – the ‘Separation of Powers’ will soon come under the spotlight for all the wrong reasons


Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is currently a Deputy Vice-Chancellor at Fort Hare University and writes in his personal capacity.

As the political landscape becomes increasingly complex and devoid of proper leadership, we turn to our courts to keep the political compass in check. In recent years and months our government and by extension the governing party have found themselves rather embarrassed by recent high court rulings against them as it relates to processes, decisions and untoward actions.

I’m reminded of the 20-year celebration speech by the then Deputy Chief Justice, Dikgang Moseneke, held at Unisa and organised by Mistra, when he eloquently shared his views of the past 20 years of Democracy and what he thought were some of the concerns he had, going forward.

First, he shared with us what the Constitutional Court’s contribution had been over the last two decades with regards to lawmaking and protecting the South African Constitution. He spoke of the various progressive decisions the ConCourt had taken in defence of the poor in our country, whether it be forced removals legislation or simply access to free basic services, to mention but a few.

Second, he touched on the increasing phenomenon of political battles being played out in our courts today. As if the court roll is not already inundated with its enormous criminal justice load he says, increasingly, political formations of all hues are turning to the courts to referee their differences. He says, this simply takes the courts away from its actual mandate. He described this phenomenon as “lawfare” as opposed to warfare and implored that this needed to stop, and others ways found to solve our political differences. These differences include trade unions coming to the courts to decide who is the real leadership of the union, parliamentary members taking their own parties to court to decide whether they can keep their respective seats against their party wishes. And of course of late and increasingly the opposition parties turning to our courts for recourse in so many matters –Nkandlagate, the ICC withdrawal, Nuclear Deals, SOE’s matters, to mention but a few.

The third matter Moseneke spoke about was the “over concentration” of Executive powers residing with the Presidency. He indicated that when the founding fathers conceive of our very progressive and globally admired constitution, as they were outlining the powers of the President, they had Mandela in mind, knowing that this great Statesman would obviously ascend to the highest office in the land. They, unfortunately, according to Moseneke, did not envisage ending up with a person that firstly did not understand his oath of office and one who clearly uses and abuses such office for his personal gain and advantage, such as the person currently occupying the presidential seat at the Union buildings.

Moseneke’s speech does make for good reading.

But back to lawfare, there remain numerous cases but let’s just concentrate on the recent few for the purposes of our argument.

The first decision involves a Head of State, Omar al-Bashir from the Sudan. An international arrest warrant was issued by the International Criminal Court (ICC) and any signatory country (SA is such a member) is obliged to arrest Bashir should he visit or be found within the borders of such country. South Africa did not arrest him and in fact allowed President al-Bashir to leave the country safely, violating its obligations under the Rome Statute. Our courts at the time had ruled that the government should have arrested the Head of State. Now, this is a curious ruling since some may argue that arresting a sitting Head of State of any country is indeed tantamount to declaring war on that president’s country. This begs the question, can our courts declare war on another country or is this the purview of our elected officials? Or should our courts instead of ruling that a Head of State should be arrested, have ruled that it does not have the necessary jurisdiction on such matters of State?

The next ruling involves the subsequent decision by the Executive to withdraw from the ICC and in turn the Rome Statute. Our courts were yet again called upon to decide whether this decision was lawful and in-keeping with our constitution. Again the court quite correctly ruled that the process followed by the Government was found to be unlawful and not in-keeping with our constitution but then it went a step further. The court instructed the government to go to the United Nations Headquarters in New York and withdraw the letter of intent it had submitted concerning such withdrawal. This, some argue, is unprecedented since matters of State and International Relations remain exactly that, matters of state. After all, once the ruling is made, surely it is up to the government to decide how to comply with such ruling and how best to execute such determinations.

The “vote of no confidence” matter is also before our courts, and indeed the entire country waits with bated breath at the possible outcome of our courts. I suspect the ConCourt will uphold the decision of the Western Cape high court in this regard and not necessarily further blur the jurisdiction of our courts. The procedural matters of the legislature remain the domain of that legislature, whether we like it or not I’m afraid the courts will say.

The latest ruling worth looking at is the nuclear deal of government, where again the courts have simply ruled that the process followed was not lawful and hence the preceding protocols falls away. Here government is likely not to make a fuss and simply follow the necessary steps towards consultations and still remain steadfast in its ambition to follow through with a nuclear deal, as is permitted by the energy mix policy imperatives of government.

One is also unfortunately reminded of times where our courts have over-stepped its jurisdiction in recent times. You only have to be reminded of Judge Nicholson’s ruling in 2008 which ultimately led to the removal of a sitting Head of State and dare I say, all the concomitant consequences we are currently saddled with, including ending up with the current President. Though this ruling was overturned in the strongest terms, it must be said, it was too little too late.

And so, with a national leadership increasingly losing its legitimacy and its handling of matters of State, one can only assume that the lawfare between the executive, legislature and the judiciary will increasingly come under enormous pressure. And that lawfare will indeed become open warfare. We also need not turn a blind eye to the already existing feeling and perception amongst some South Africans of the bias nature of our courts when it comes to its application of fairness, whichever way one looks at it. Our people do have strong views of how Jub Jub’s case was handled and its sentencing as opposed to the Oscar Pistorius case and its sentencing. Zuma and his ilk is likely to play on these perceptions and exploit it to their benefit going forward.

The “Separation of Powers” will be tested to its limits over the coming months and it is up to civil society and a strong resolve on the part of our courts to keep us steady during these turbulent political times. DM


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