GUILTY AS CHARGED: Zuma in­sults SA’S ju­di­ciary by say­ing Gov­ern­ment is above the law

Finweek English Edition - - COLUMN - STEPHEN MUL­HOL­LAND

Zuma is sug­gest­ing SA’s courts have been duped into curb­ing the rul­ing party’s po­lit­i­cal


PER­HAPS IT’S THE in­flu­ence of Ja­cob Zuma’s new spokesman – the el­derly Mac Ma­haraj – that led our Pres­i­dent to ven­ture into the quick­sands of philo­soph­i­cal ar­gu­ment about the sep­a­ra­tion of pow­ers when he ad­dressed the re­cent Ac­cess to Jus­tice Con­fer­ence in Pre­to­ria.

How­ever, it’s no se­cret that the African Na­tional Congress is ir­ri­tated by the power of South Africa’s courts to in­struct it to take cer­tain steps to rec­tify what the courts view to be in con­flict with the Con­sti­tu­tion. For ex­am­ple, there was the cel­e­brated mat­ter in which busi­ness­man Hugh Glenis­ter suc­cess­fully brought an ac­tion to have leg­is­la­tion that founded the so-called Hawks as suc­ces­sor to the Scor­pi­ons (sounds like a zoo) de­clared un­con­sti­tu­tional.

Glenis­ter won his case and the Con­sti­tu­tional Court gave Par­lia­ment 18 months to rem­edy the leg­is­la­tion af­ter find­ing Chap­ter 6A of the South Africa Po­lice Ser­vice Act, as amended, was con­sti­tu­tion­ally in­valid.

“The key ques­tion in this case is whether the na­tional leg­is­la­tion that cre­ated the Direc­torate for Pri­or­ity Crime In­ves­ti­ga­tion, known as the Hawks [DPCI], and dis­banded the Direc­torate of Spe­cial Op­er­a­tions [DSO], known as the Scor­pi­ons, is con­sti­tu­tion­ally valid,” said the judg­ment. The ma­jor­ity of the court found it was not, say­ing: “The main rea­son for this con­clu­sion is that the DPCI is in­suf­fi­ciently in­su­lated from po­lit­i­cal in­flu­ence in its struc­ture and func­tion­ing.”

Quite rel­e­vant is that the dis­band­ing of the Scor­pi­ons was a de­ci­sion taken at the ANC con­fer­ence in Polok­wane in 2007 fol­low­ing lengthy at­tacks on the unit as it at­tempted to in­ves­ti­gate corruption al­le­ga­tions against Zuma.

The judges held that cur­rently the DPCI’s ac­tiv­i­ties are co-or­di­nated by Cabi­net and that the statute pro­vides that a min­is­te­rial com­mit­tee may de­ter­mine pol­icy guide­lines in re­spect of the func­tion­ing of the DPCI, as well as for the se­lec­tion of na­tional pri­or­ity of­fences. “This form of over­sight makes the unit vul­ner­a­ble to po­lit­i­cal in­ter­fer­ence.” The safe­guards to pre­vent po­lit­i­cal in­flu­ence and in­ter­fer­ence were also in­ad­e­quate, the court ruled.

In his ad­dress Zuma said: “…it is our well­con­sid­ered view that there is a need to dis­tin­guish the ar­eas of re­spon­si­bil­ity be­tween the ju­di­ciary and the elected branches of Gov­ern­ment, es­pe­cially with re­gard to Gov­ern­ment pol­icy for­mu­la­tion.” He added: “…once Gov­ern­ment has de­cided on the ap­pro­pri­ate poli­cies the ju­di­ciary can­not, when strik­ing down leg­is­la­tion or parts thereof on the ba­sis of il­le­gal­ity, raise that as an op­por­tu­nity to change the poli­cies as de­ter­mined by the ex­ec­u­tive area of gov­ern­ment.”

That doesn’t make sense. There’s no ev­i­dence pro­vided by the Pres­i­dent that that has been the case. His is a grave in­sin­u­a­tion, which he ut­terly failed to back up with ev­i­dence. Zuma’s frus­tra­tion with the legal sys­tem was clear, as he re­marked: “The pow­ers con­ferred on the courts can­not be su­pe­rior to the pow­ers re­sult­ing from the po­lit­i­cal and con­se­quently ad­min­is­tra­tive man­date re­sult­ing from pop­u­lar demo­cratic elec­tions. Po­lit­i­cal dis­putes re­sult­ing from the ex­er­cise of pow­ers that have been con­sti­tu­tion­ally con­ferred on the rul­ing party through a pop­u­lar vote must not be sub­verted sim­ply be­cause those who dis­agree with the rul­ing party po­lit­i­cally, and who can­not win the pop­u­lar vote dur­ing elec­tions, feel other arms of the State are av­enues to help them co-gov­ern the coun­try.”

Quite sim­ply, Zuma is sug­gest­ing SA’s courts have been duped into curb­ing the rul­ing party’s po­lit­i­cal power by those who, hav­ing not won the battle for po­lit­i­cal power, take to the courts to sub­vert the Gov­ern­ment. Can there be a worse in­dict­ment of our judges that they’d per­mit them­selves to be so ma­nip­u­lated?

Zuma added in­sult to in­jury when he stated: “This (the courts en­abling los­ing po­lit­i­cal par­ties to co-gov­ern the nation) in­ter­feres with the in­de­pen­dence of the ju­di­ciary. Po­lit­i­cal bat­tles must be fought on po­lit­i­cal plat­forms.”

He needs an­other speech writer.

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