Death of the rule of law

WHEN Frene Ginwala was Speaker of the National Assembly, she never allowed MPs to debate matters that were before the court or court judgments.

She understood that parliament as constituted by elected representatives should never be seen to be challenging courts.

There is always the danger that asked to choose between the popularly elected representatives and un-elected court judges, ordinary people would favour those who are popularly elected. But it would be a totally false choice as both are indispensable to a functioning democracy.

Ordinary people require the protection of independent, un-elected judges when the democratically elected representatives abuse their executive and legislative powers.

The judiciary adjudicates disputes from all spheres of society. It does this within the framework of the constitution.

The judiciary has powers to overturn the decisions of parliament and executive if they are unconstitutional. It is the only arm of the state with overarching powers.

It is because of this system that South Africa is respected as a constitutional democracy where the will of the people find expression in parliament.

But parliament and the executive are constrained from acting outside the law using electoral support as a justification.

To undermine court orders, as government has done by allowing Sudan President Omar al-Bashir to evade arrest, is totally wrong. The executive gave itself powers it did not have. It might also set the wrong precedent where ordinary folk and other institutions might feel justified to disregard court orders.

Equally wrong is for parliament to debate matters that are before court. DA leader Mmusi Maimane ’ s call for a parliamentary debate on Al-Bashir ’ s escape is very dangerous. Such actions could render courts – the last bulwark for citizen ’ s rights – useless.

Speaker of the National Assembly Baleka Mbete should have rejected the call for a debate to show her appreciation of the separation of powers.

A full bench of the North Gauteng High Court in Pretoria has asked the government to provide reasons under oath on how Al-Bashir left the country while a court order sought to prevent him from doing so.

The court wants to deal with the possibility that its order to prevent Al-Bashir from leaving the country may have been deliberately violated, and that cannot go unpunished.

Now Mbete is allowing parliament an opportunity to openly challenge the judiciary and question its processes.

It serves her and her party well to take advantage of Maimane ’ s short-sighted call for a debate. This has put the country in a legal quandary.

No doubt there will be a lot of sound and fury in parliament tomorrow. But unlike the Shakespearean version, this one could signify something – the death of the rule of law.