Politicians, executive don’t have a right to intimidate judiciary

AN UNPRECEDENTED series of gratuitous verbal attacks on the judiciary by prominent members of the executive has precipitated a meeting, attended by senior members of the judiciary and chaired by Chief Justice Moegeng Moegeng.

At this gathering, the chief justice was mandated to arrange a meeting with President Jacob Zuma to discuss the tense relations between the two branches of government. This meeting is to take place as soon as Zuma returns from overseas.

This strained relationship between the executive and judiciary must be understood against the background of our liberal democratic constitution, premised on a separation of powers and the independence of the judiciary.

South Africa has a constitu- tional democracy and not a pure majoritarian democracy. In the latter there are far fewer constraints on the executive, having majority electoral support. By contrast, in a constitutional democracy, the executive is legally obliged to exercise its power in terms of the constraints imposed by the constitution and the Bill of Rights.

Recently, the high courts have given courageous judgments against the executive to uphold the obligations imposed by the constitution on the executive.

This has intensely infuriated members of the governing party, resulting in vicious and unbridled verbal attacks on the judiciary that could affect its independence.

In a constitutional democracy the executive is obliged to carry out court orders, even those that are unpalatable to it, such as that relating to President Omar al- Bashir. When the executive of a state starts to ignore court orders, it undermines the constitution, paving the way thereby for the emergence of a failed state, as has occurred in Zimbabwe.

The present state of affairs constitutes a constitutional crisis, since neither branch of government is likely to back down. For the judiciary what is at stake is its independence and integrity.

Executive members who have been voicing righteous indignation are unlikely to seek a compromise, which would be perceived by the electorate as in some way conceding that it has exceeded its powers.

Although some face-saving statement is likely after the Moegeng/ Zuma meeting, the tension will not be dissipated. Indeed in a constitutional democracy, such tension is part of the anatomy of the body politic and liberal democracy. Although it is always potentially present it needs to be managed with adroitness and sensitivity.

The present crisis has occurred because the ANC executive has not managed the situation and allowed its senior members to make unbridled attacks on the judiciary, impugning its integrity and undermining its independence.

The independence of the judiciary is indeed a cornerstone of our constitutional democracy, which is enshrined in sections 165 (3) and (4) respectively of the constitution, which states that: “No person or organ of state may interfere with the functioning of the Courts; and Organs of state, through legislative and other measures, must assist and protect the Courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the Courts.”

It is submitted that the orchestrated attacks made by senior members of the executive, such as that made by Dr Blade Nzimande, who declared that the judiciary are using double standards, are indeed a violation of these two provisions constituting “interference” with the functioning of the courts and a failure to protect “the independence, impartiality, dignity, accessibility and effectiveness of the Courts”.

Politicians and the public have a right to criticise judgments of the courts in a reasonable and restrained manner, but most certainly not in a manner that impugns the integrity of the courts.

It appears that the assault on the courts is a strategy to intimidate judges to give judgments that favour the executive. There is fortunately evidence that judges will not play ball and will continue to deliver judgments without “fear or favour”, and in so doing they will uphold the constitution.

However, all in society have an important obligation to support the judiciary in maintaining its independence and integrity.

This needs to be declared unequivocally. Politicians and the executive do not have the right to intimidate judges to get favourable judgments. In our constitutional firmament the judiciary and its judges are the flaming stars. They deserve our unqualified support.

South Africans, having crafted an exemplary constitution involving a bold judiciary, need to protect it from the predations of those in the body politic who would wish to undermine it in the pursuit of unrestrained executive power.

Professor Devenish is an Emeritus Professor at the University of KwaZulu-Natal and helped draft the interim constitution in 1993