Sunday Times

Politician­s’ fears feed attacks on judiciary

- WILLIAM GUMEDE ✼ Gumede is associate professor, School of Governance, Wits University, and author of Restless Nation: Making Sense of Troubled Times (Tafelberg)

Refusal to be held accountabl­e for wrongheade­d decisions, unconstitu­tional policies and corruption is the main reason for persistent­ly loud attacks by politician­s on the judiciary. While the judiciary is neither perfect nor above criticism, the barrage of attacks on it is in many cases without merit, aimed at covering up misbehavio­ur and scoring points to seek mass popularity.

Former president Jacob Zuma, under investigat­ion for state capture, has consistent­ly attacked the judiciary, trying to intimidate judges to go soft on him.

He has tried to discredit the judiciary, using populist rhetoric, either claiming they are too white, supposedly following “Western” law, and that he should be judged by what he calls “African” law, as if South African law is not African, and as if traditiona­l law is not part of South African law, and furthermor­e as if corruption is fine under traditiona­l law.

Many populist leaders in the ANC, the EFF and other parties also regularly attack the judiciary. They wrongly believe that the president, the executive and a governing party’s leadership cannot be held accountabl­e by the judiciary. They are opposed to the principle of constituti­onal review of executive, parliament­ary and democratic institutio­ns’ decisions.

Others say judges make decisions based on political and personal motivation­s. Yet, judges interpret the law and the constituti­on, not their personal, political or religious opinions. Judges’ interpreta­tion of the law is public. It can be contested by lawyers and citizens.

Many say the judiciary is encroachin­g on politics. Some leaders of the governing ANC behave so unaccounta­bly, corruptly and without moral scruples within the ANC, the government and in public that ordinary citizens, civil society and other ANC members often have no other choice but to take them to court to hold them accountabl­e.

Parliament, because of our closed party-list system, with party leaders hand-picking pliant elected representa­tives, often defers to the president and the executive. Many democratic oversight institutio­ns,

The barrage of attacks is in many cases without merit, aimed at covering up misbehavio­ur

watchdogs and chapter 9 institutio­ns, establishe­d in terms of the constituti­on to guard democracy, have also been packed by equally docile leaders, leaving ordinary citizens unprotecte­d against callousnes­s by government leaders, the executive and greedy corporatio­ns also.

It is often misunderst­ood that SA is a constituti­onal democracy, not a presidenti­al or parliament­ary one, where the Constituti­onal Court plays the bedrock oversight role, holding the executive, the government, business, civil society and citizens accountabl­e to the values of the constituti­on.

Over the past two decades it has been politician­s who have tried to politicise the judiciary by trying to pack the bench with their favourites. Former deputy chief justice Dikgang Moseneke was deliberate­ly sidelined for the top judicial position because he was seen as critical of the ANC government.

Although the higher courts are mostly above reproach, the magistrate­s’ courts, which ordinary citizens generally encounter, are often inefficien­t, indifferen­t and corrupt — which clouds ordinary people’s views of the judiciary. The magistrate­s’ courts will have to be brought to the same exacting standards as the higher courts.

It is very important that members of the judiciary behave with decorum and maturity and stay clear of publicly expressing polarising political, religious and ideologica­l views.

Chief justice Mogoeng Mogoeng’s rift-causing public views on Israel and his claims that the Covid-19 vaccine is the “devil’s work” undermine not only his credibilit­y but that of the judiciary. In such circumstan­ces, the Judicial Service Commission (JSC), the peer oversight body of judges, should act quickly to publicly censor errant judges — which it has.

It is unacceptab­le that it has taken the JSC over a decade to decide what to do about Western Cape judge president John Hlophe since the first complaint of misconduct was lodged against him.

The Constituti­onal Court’s recent directive that Zuma should provide an affidavit on what penalty the court should impose if it finds him guilty for contempt of court undermines the authority of the court. It creates a perception that the court is giving him special treatment and that the judges fear Zuma and his supporters’ threat of violence if he is jailed. This undermines the principle of equality before the law.

Politician­s are part of the JSC. Politician­s who are under investigat­ion should resign from it. The number of politician­s on the JSC should be reduced and civil society representa­tives should be included.

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