The ‘reluctant’ arbiters
Tabane is author of and host of Power Perspective on Power 98.7 from 9pm to 12am Sundays to Thursdays. Follow him on Twitter @JJTabane
THE ANC chairperson of KZN, Sihle Zikalala, seems only recently to have discovered a legal phrase called judicial overreach. He even organised a march about it (and possibly coined a Zulu phrase to translate it to the marchers). Everyone is concerned about such a possibility, but for different reasons.
There are no prices for guessing why someone like Zikalala would be concerned and brazenly rush to make the conclusion that judicial overreach is firmly in full swing, given all the hype of activity in our courts in recent times. Quite frankly, his conduct fits that of someone who should have been an MP in the eighties, when Parliament did pretty much what it wanted without any accountability to anyone.
Unfortunately for practising demagogues like Zikalala, we are in a constitutional democracy where the constitution is supreme. If this were not the case, his suggestion that parties which take matters to court “must be fined by Parliament” would have come to pass and made a mockery of constitutionalism.
Simply put, the constitutional democracy means that no part of the state can do as it pleases and has to be subject to the other two arms in the triangle of checks and balances. Zikalala and his ilk argue that we shouldn’t be having unelected judges holding sway over elected politicians.
This sounds like placing the election of representatives at the same level as doing the right thing to comply with constitutionalism. While this sounds revolutionary, it’s actually a terribly weak argument. The electorate is assumed to be voting for an entire system of governance, not just the executive. In other words, there is nothing special about the executive over the other two arms of the state. All three exist in a fine and balanced equilibrium.
In fact, the electorate votes for parties which then select representatives who serve in the legislature as members of Parliament and then are appointed to the executive. The president himself is not voted for directly by the electorate but by Parliament which, in a sense, delegates some authority to him.
Parliament then brings into being the judiciary through the Judicial Service Commission’s responsibility to appoint judges.
They appoint judges and can also disappoint those that are found to be indulging in misconduct. This way, the judges are held accountable by elected representatives across all political parties, giving them credibility. So all three arms of the state can be comfortably be said to derive their legitimacy from the people.
Their relationship is regulated by the constitution. The legislature is given the task to pass laws and hold the other two arms to account: the executive has a responsibility to govern by implementing the laws passed by Parliament, with the judiciary being the final arbiter about the interpretation of the laws passed by Parliament. This is, frankly, a simple triangle of interdependence.
Of course many observers say the constitutional order never anticipated a corrupt administration or president, so the numerous cases where the judiciary have to get the administration to do the right thing gives an impression of an over-extending judiciary, but let’s examine a few cases where the executive was called into line by the court:
The Nkandla saga. The executive ignored a chapter nine institution – the public protector. The courts while handing down the judgment, did not tell the legislature what to do, nor set parameters to help it examine whether the legislature has complied with its directive. If anything, the courts were lenient, and more than a year later there is no consequence for the blatant violation of the constitution by the president, his executive and the legislature itself.
The state of capture. The chapter nine institution only made a sensible proposal that would avoid a conflict of interest should the president appoint a commission of inquiry that would investigate him. The president is at it again. Instead of doing the right thing, he is keeping the stench of state capture hanging over society. Once again, the courts are being invited into the political arena to pronounce on a purely political matter.
The police ministry’s war with Ipid. The courts ruled against the executive and let Robert McBride go free. The courts pronounced long ago on the unsuitability of Berning Ntlemeza. If only the then-minister took heed of the courts’ simple pronouncement, a proper head of this crucial crime-fighting unit would be in place.
The Simelane appointment case. The courts found the president to have been illogical in appointing someone who is not a fit and proper person. Menzi Simelane’s utter dishonesty was in full display at the Ginwala inquiry. Once again, it took the courts to prompt the executive to do the right thing.
The ICC withdrawal. The court found that the executive had undermined the legislature in announcing the withdrawal before rescinding the relevant statutes through Parliament.
In all these cases, if either Parliament or the executive had just done the right thing, there would have been no need for the judiciary to get involved. The question of judicial overreach is, therefore, more of a perception given the number of times the judiciary had to intervene on the side of the law than a deliberate effort on the side of the judiciary to do the work of the executive.
If anything, the judiciary has, quite frankly, been at pains to avoid any such overreach.