Politics or the pulpit should play no role in the choice of judges

THERE was that salient moment during the Judicial Service Commission interview of Mogoeng Mogoeng for the position of chief justice a few years ago when Koos van der Merwe, the former Inkatha Freedom Party MP, asked him, almost tongue in cheek, whether it was true that he had told friends God wanted him to take the job.

“I believe so,” the candidate responded without missing a beat.

It provoked chuckles of unease among the assembled legal minds. That brief exchange should have given everybody reason to pause and reconsider. But the JSC recommended that he be anointed. He was the only candidate.

Mogoeng’s religious beliefs are not at issue. That is a private matter. But a man in his position should not wear his faith on his sleeve, especially if those beliefs seem inconsistent with the values of our constitution. The exalted position of chief justice is no place for fundamentalism of any kind.

The Constitutional Court is at the heart — the guardian — of our freedoms. It is our democracy’s last line of defence. We require the person at the top to wholeheartedly buy into its ethos. That should be an absolute requirement.

Mogoeng’s brand of religion, for instance, regards homosexuality as sinful. The chief justice is obviously being pulled in opposite directions by the demands of the constitution, on the one hand, and the strictures of his church, or conscience, on the other. He has made several controversial remarks since his appointment in a vain attempt to stay on both sides of the argument.

Last week, he suggested that religion should play a part in the making of our laws, and he seemed to conflate religion with morality. This week, he called a press conference to clarify the statement, only to leave some doubt. For instance, he said he wanted to assure those who “choose” to be gay or lesbian that he will always follow the precepts of the constitution.

It is a bit strange that we should have a chief justice whose public persona is informed or driven not by his jurisprudence, but by his contentious religious beliefs. He seems more comfortable in the pulpit than on the bench.

Mogoeng remains a perplexing appointment, even by Jacob Zuma’s dubious standards. His choice was a stab in the dark. Zuma did not seem to know him that well. Mogoeng had no written legal opinion to at least alert the public to his views. A few of his judgments and pronouncements were controversial. “Writing is not my passion,” he said at his interview.

Maybe those who argue that we are being too hard on our chief justice have a point. He means well. Bruised by the derision that greeted his elevation, he is probably trying too hard to chart a useful public role for himself. But he is constrained by his lack of experience and gravitas. Therefore, without the intellectual heft of his colleagues on the bench, he cannot lecture them or the laity on the letter or use of the law. So he resorts to the only role he has mastered — that of a small-town preacher. A person promoted beyond his competence tends to keep going back to his old job, his comfort zone.

Judges speak through their judgments, an extraordinarily powerful tool. They are thus able to affect lives and shape public opinion. But that, unfortunately, requires a fair bit of writing.

But Mogoeng, having been offered such an influential position, especially for someone from a poor background, could not have been expected to decline. However, it is the procedure and mechanism of selecting judges that are the root of the problem. Ironically, in creating the JSC, it was thought we had at last found a nonpartisan, nonpolitical way of picking the best in our judiciary. The National Party had in the past manipulated the selection of judges, most notoriously in removing coloureds from the common voters’ roll.

Instead, the JSC has become an instrument for political interference and a platform for political grandstanding. Candidates are rarely questioned about their qualifications, scholarship or legal interests, but are harangued about their political views and what they did or did not do in the struggle.

Transformation is obviously exceedingly important, but it cannot be the only litmus test in the selection of judges. The politics have put off suitably qualified individuals from availing themselves. The result is that relatively less-qualified lawyers end up on the bench.

The political slant in JSC deliberations is no surprise. In fact, calling it a judicial commission is a misnomer. It is politicians who dominate. Judges and lawyers are in a minority. So the JSC should be reconstituted and its role reviewed.

Ideally, it should comprise only members of the legal fraternity. No politician should sit on it. And it should be the JSC, not the president, that seeks suitable candidates, interviews them and then presents a shortlist to either parliament or the president to make the final decision.

Maybe that way we will end up with a chief justice the country deserves.