Judicial overreach reverses gains of our democracy
Developments in the political realm are an oxymoron — they are slow yet fast.
The thorny issue that has been troubling us in the development and maturity of our constitution is judicial overreach. In many instances, the arm of the state which is the judiciary has been charged with judicial overreach.
We are an example as a country that has gone through the scourge of apartheid and how the executive and the legislative arm of that regime muzzled decisions made by the judiciary. We know how the judiciary operating under apartheid was co-opted by the government into ill-treating blacks in general.
There have been many instances where the judiciary saw it fit to reverse the gains of our hard-fought democracy.
The Judicial Services Commission has been dealing with cases where the members of the judiciary allegedly acted untoward and tried to influence political outcomes and cases that were before courts to advantage their preferred candidate.
What quickly comes to mind is the case of Western Cape judge president John Hlophe, who is accused of soliciting support for former president Jacob Zuma in the cases that were before courts.
I think our courts have in some instances reversed the gains of democracy. A case in point was when public sector unions approached the apex court to be the final intermediary in their dispute with government over an agreement was signed that would be effective for three years.
The court ruled that the previous agreement was unlawful, thus throwing collective bargaining into limbo.
There has been a popular belief that there is no concerted effort to criticise the judiciary unnecessarily but to raise awareness about the role they are playing and the judgments they are pronouncing.
Last month we watched with interest the developments in the US where the Supreme Court ruled on Roe v Wade (a law that had authorised the right for women to have abortions).
The ruling effectively means that there would be restrictions on how abortion ishandled and the current methods employed may mean that women are transgressing the law.
US President Joe Biden gave a spirited critique on how this development may harm progress made in the emancipation of women and the upholding of their rights.
It took this issue for Biden to make his views known about the role the judiciary has played in rolling back the gains made by the people of the free world.
While they claim, as Americans, that they are the leaders of the free world, they have just rolled back decades of progress they had amassed in emancipating women from an oppressive patriarchal system.
This has been led by a judiciary that is male in its makeup and backed by a conservative school of thought.
Thinking along these lines makes one draw the conclusion that there is a creation of a superpower within democracies —the judiciary.
It is positioned in a holy and sacred space where it is deemed an act of blasphemy if one expresses a strong opinion against the way judges act. For any democracy to function properly, there must be space for voices of dissent.
It is incumbent upon all of us to show courage in our convictions and to fully participate in the process of democracy and to strongly challenge every aspect which we may deem fit to contest.
It is the essence of what the founders of the democratic SA envisaged and the path they would have chosen for all citizens.
This would be the true test of what democracy is. When there are holy cows that must not be touched, such as the judiciary and the outcomes of judgments on matters before those courts, it means there is no sense of knowing what democracy is.
If the judiciary and the decisions they arrive at are not contested in the courts and the public realm, then we have no way of advancing the gains of our hard-won democracy and the battle that was waged by our forebears was in vain.
We should not be seen to be using eversive strategies when serious questions are posed about the judiciary and whether they are seen to make themselves de facto leadership of the country.
Forming part of an establishment of government that holds a very dim view of dissenting views is the very essence of the opposite of democracy. We cannot be party to an arm of government that seeks to be intolerant of the views from the public pertaining to how the judiciary can rule unquestioned.
We live in hope that we would be having a judiciary that would not shy away from standing its ground against selfappointed proxies who come to its defence, regardless of how they as the judiciary may have performed. Reactions of this nature, where the independence of the judiciary is always defended, are not indicative of a degenerative state, but a growing democracy.
It is our duty as the citizens to always ensure that all arms of government are functioning in the manner that is prescribed in the constitution and that none of them dabbles in the realm of the other.
This is a spirited battle that we need to wage and ensure that we all receive the dignity afforded to us by the courts and them as arbiters in matters of dispute.
I think our courts have in some instances reversed the gains of democracy.