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The judiciary and the executive: at peace, for now

The judiciary and the executive: at peace, for now

9th September 2015

By: ISS, Institute for Security Studies

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It was a meeting that should probably not have happened, but it did. South Africa’s Chief Justice Mogoeng Mogoeng, his deputy, Judge Dikgang Moseneke, as well as senior judges of the Supreme Court of Appeal met with President Jacob Zuma, Deputy President Cyril Ramaphosa and four cabinet ministers.

The meeting, held at the request of the chief justice, was intended to discuss the tensions between the executive and the judiciary, specifically in the wake of the al-Bashir judgment.

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Government failed to adhere to Judge President Dunstan Mlambo’s order that it detain Sudanese President Omar al-Bashir, who is wanted by the International Criminal Court (ICC) for mass killings and rape against civilians in Darfur. South Africa is a signatory to the Rome Statute, the treaty that established the ICC. Tensions may have reached a highpoint with the al-Bashir matter, but it is worth remembering that various ministers and senior members of the African National Congress (ANC) have attacked the judiciary consistently in the past few years.

After the Mlambo judgment, ANC Secretary-General Gwede Mantashe launched a scathing attack on the courts, labelling them as ‘problematic’ and saying that ‘some sections’ of the court system are driven by a desire to ‘create chaos for governance’ in South Africa. His deputy, Jessie Duarte, followed suit with similar criticisms.

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In 2012, Ngoako Ramatlhodi – senior ANC member and currently the minister of mineral resources – also lashed out at the judiciary while delivering a lecture in honour of ANC President AB Xuma. Ramatlhodi accused the judiciary of seeking to undermine the executive.

But the tension goes further than criticising the judiciary. As the Nkandla matter unfolded, we saw successive ministers and the president himself undermine the Public Protector’s Office, which is a constitutionally mandated body charged with ensuring that there is no impropriety in public administration.

When the public protector released her report into the corruption within the Passenger Rail Agency of South Africa recently, the ANC’s lukewarm response was to call her findings and recommendations ‘allegations’. Words matter, and what the ANC says matters. By using the word ‘allegations’, the ANC has both minimised and undermined the Public Protector’s Office and the constitution. It is therefore unsurprising that the attacks on the judiciary have increased in number and intensity.

The trend has mostly been to lash out at the judiciary when judgments are unfavourable to the state. This happens both subtly – by not implementing court orders at times – and more overtly, through open attacks on judges. We are told that the meeting between the chief justice, the president and their colleagues was held in good spirit, and Mogoeng was quoted as saying that sometimes judgments ‘pinched’ – which was a sign of a healthy, robust democracy.

The meeting concluded with a ‘10-point’ agreement, which will broadly ensure that there is mutual respect between the executive and the judiciary. It will also mean that criticism against either branch of government is measured and that the Constitution be upheld. In other words, after meeting for seven hours, the parties agreed to adhere to the constitution. If only it were that simple.

The question, of course, is how one measures and defines ‘criticism’. When judges hand down rulings, the constitution demands that they do so without fear or favour and by applying the law and the constitution. Where government falls short – as it did in the al-Bashir matter – or ignores a court order, it should feel the sharp end of the rule of law.

Its constitutional obligation is to adhere to court orders and if dissatisfied with them, to appeal them. Democracy requires robust dialogue, and it is true that in the past few years we have seen an increasing number of matters that, instead of being dealt with politically, end up in court. Numerous appointment processes have ended up in court, including the national director of public prosecutions and the chief executive of the South African Broadcasting Corporation – to name but a few.

In addition, Parliament itself has become embroiled in far too much litigation. What this signals is our inability to deliberate and persuade one another of an alternative viewpoint. It says a great deal about the increasingly porous state of our politics, and it also places the judiciary in a difficult position since some matters are simply not meant for court adjudication.

The pressure such matters put on the judiciary is untold, and we are starting to feel the deleterious impact of the over-use of court processes. Yet, often in the face of a recalcitrant state, parties have no choice but to seek clarity and a last word from the courts.

The al-Bashir matter showed us, however, that the ANC government is perfectly capable of ignoring a court order and undermining the judiciary with little concern for the long-term consequences. A degree of tension between the executive and the judiciary is healthy, and a natural outcome of our constitutional arrangements. Yet, ignoring a court order takes us into a rather dangerous realm of impunity.

So, it is unclear what the recent meeting between these two branches of government achieved except to restate the constitutional position. But we would be naïve to judge the matter at face value. While the chief justice and his colleagues should be supported and commended for boldly calling such a meeting during testy political times, we need to keep a close watch on the judgments handed down and appointments made to the bench in the coming months and years.

Zuma remains a president under pressure and under threat of possible prosecution. As we have seen with his failure to take action against Deputy Director of Public Prosecutions, Advocate Nomcqobo Jiba, despite repeated court findings against her, he may pledge allegiance to the constitution and the rule of law while his actions might indicate quite the opposite. No doubt both Mogoeng and Moseneke are aware of this, and would have been keen to draw this line in the sand to protect and defend the constitution and the independence of the judiciary.

What we really need to be watching is future appointments – not only to the Constitutional Court, but also the High Courts. Keeping a close eye on the Judicial Services Commission that deals with the appointment of judges will be key. While one can sugarcoat any interaction and spin the outcome, the lasting effects of the meeting might well only be seen in the distant future.

Might this meeting, for instance, not have had a dampening effect on judges in general, who might now be more cautious and deferential in their judgment – specifically where the state is involved? Those in lower courts aspiring to promotions might also have heard the message loudly and clearly, and might trim their sails according the political winds. This is not an impossible scenario. It would be naïve to believe that our courts, like our media, are not under threat from those in power seeking to evade transparency and accountability.

For now we can rest easy knowing that the leadership of our judiciary is united on retaining their independence. But it is not something that we should take for granted – no matter who is in power.

Written by Judith February, Consultant, Governance Crime and Justice Division, ISS Pretoria

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