Kritarchy and the ju­di­cial ac­tivists

The Africa Report - - FRONTLINE -

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.

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