Kritarchy and the judicial activists
The success of South Africa’s post-liberation constitution drafters and judiciary is reflected in the widespread support for their principles and institutional roles. The independence of the courts is central to the effectiveness of the social welfare, regulatory and intelligence organisations set up under the provisions of the constitution. There are huge risks, however: firstly of complacency – there are growing threats to judicial independence at the provincial and local government levels. Another risk is of overreach as judges try to constrain moves by Zuma’s government to flaunt the letter and spirit of the law in its daily operations. The problems of the political opposition mean that some citizens want the judiciary to take on a more adversarial or activist role. Then South Africa would risk becoming a kritarchy: government by the judges. For now, that looks improbable, given the rigour and independence of its top judges. Mogoeng Mogoeng (pictured) as chief justice, has an excellent reputation, nationally and internationally. So do the judges on the Constitutional Court: Sisi Khampepe, Mbuyiseli Madlanga, Nonkosi Mhlantla, Bess Nkabinde, Raymond Zondo, Edwin Cameron, Johan Froneman and Chris Jafta. Two other figures heading regulatory agencies play vital roles in the wider economy, and they are coming under growing political pressure. They are Murray Michell, director of the Financial Intelligence Agency, and Tembinkosi Bonakele, director of the Competition Commission. But the heaviest pressures rest on Busisiwe Mkhwebane, who replaced Thuli Madonsela as public protector in October 2016. As an experienced intelligence operative with high-level political connections, Mkhwebane is accused of undermining Madonsela’s work. Her short-term priorities – such as withholding termination payments to Madonsela – have prompted comment. And the record of Shaun Abrahams as director of public prosecutions – he is responsible for the cack-handed attempts to prosecute finance minister Gordhan – is almost universally excoriated.