Without an independent judiciary, the doctrine of the separation of powers becomes a dead letter, the rule of law disintegrates, and democracy dies.
We all know that "transformation" is a code word the ANC uses to justify the extension of its control over state institutions that should be independent from the ruling party. Cadre deployment is the key tool of "transformation" that seeks to make these institutions accountable to the ANC, rather than to the Constitution. This is why it was worrying to hear President Jacob Zuma talk about the "transformation of the judiciary" in his State of the Nation Address.
These concerns were compounded this week when the Minister of Justice, Jeff Radebe, strong-armed the Judicial Service Commission (JSC) into postponing interviews for judicial appointments. His intervention was unprecedented in the history of the Commission.
According to the JSC, the Minister requested a postponement to consider "the enhancement of the independence of the judiciary and the vital question of the transformation of the judiciary in terms of the Constitution with regard to race and gender representivity in order to facilitate meaningful input into the appointment process".
Of course, the Minister's justification was disingenuous.
For the ANC, "transformation" does not simply mean overcoming the injustices of the apartheid past or adhering to the constitutional imperative of establishing a bench that broadly reflects the racial and gender composition of the South African populace - an imperative the DA supports. It means promoting a judiciary that submits to the ANC's control, is more executive-minded and is held accountable to the ruling party rather than the Constitution.
The Judicial Service Commission is the constitutional body set up to nominate and recommend candidates for judicial appointment. It exists, in part, thanks to the efforts of Tony Leon and the Democratic Party's team of negotiators at the Convention for a Democratic South Africa (CODESA).
If the ANC and the defunct National Party had had their way, the ruling party would have effectively handpicked its own judges, rendering the most important safeguard of our rights subject to political manipulation by the ruling party.
Instead, the DP tabled a series of amendments to the original ANC/NP proposal, the effect of which was to create the JSC, whose members recommend judges for appointment by the President.
The creation of the JSC was by no means an ideal solution, but as a mechanism for judicial appointments, it is infinitely preferable to the model of direct political appointments so favoured by majority parties.
And the JSC has made great strides in a responsible way to remedy the situation inherited from 1994, when out of 200 judges only one was black and only one was female. Currently, the senior leadership of the judiciary is predominantly black - including the Chief Justice, Pius Langa, most of the Constitutional Court judges, many of the Supreme Court of Appeal (SCA) judges (including the president of the SCA) and all but one of the provincial Judge Presidents. Nearly 90% of judges appointed since 1994 are black. Currently, 112 of the 205 judges countrywide (or 55%) are black.
Racial diversification of the bench is proceeding apace. Ironically, though, the ANC is driving its "transformation" agenda harder than ever before. The reason, again, is that the ANC is not actually arguing for a more racially diverse bench. It wants a bench that is subservient to the racial ideology, policies and political control of the party-state.
The clearest example of this was the ANC's rebuke of Deputy Chief Justice, Dikgang Moseneke, for stating that judges should retain their independence. The Judge's exact words were: "It's not what the ANC wants or what the delegates [to Polokwane] want; it is about what is good for our people". In making this statement (which should be self-evident in a democracy) Judge Moseneke was placing the Constitution above the Party. This is a basic democratic requirement of the criminal justice system as a whole. Yet the ANC expressed its "shock" at the Judge's statement. The Party's powerful National Working Committee (NWC) said Judge Moseneke's statement demonstrated the need to accelerate "transformation" of the Judiciary. This statement by the ANC, more than any other, has exposed what it means by transformation. It has nothing to do with correcting historical imbalances, and everything to do with establishing ANC hegemony over institutions that should be independent.
In fact, the ANC has been on record stating that "transformation of the state entails...extending the power of the National Liberation Movement over all levers of power: the army...the bureaucracy...the judiciary...and so on".
In order to enforce its definition of "transformation" the ANC also uses accusations of "racism" to intimidate the judiciary.
The Minister of Transport, Sibusiso Ndebele, for example, has, in the past, attacked certain judges, claiming that "racist attitudes overwhelm [their] minds". He made the untrue and alarming generalisation that "offenders are at most times judged on their colour and not on the merits of the cases". In other words, if the ANC does not like the judgement, the Judge must have been "racist".
When the ANC punts "transformation" in the Judicial Services Commission, it uses the figleaf of a narrow, quantitative definition of "racial representivity" as the key defining criterion for appointment to the bench. That is not what the constitution says, nor what it intended.
By elevating racial headcounting above other criteria, the ANC undermines the selection criteria set out in the 1994 "Guidelines for questioning candidates for nomination to the Constitutional Court". These Guidelines, which were specially devised for the JSC, suggest that the promotion of racial "diversity'" rather than "representivity" should be considered alongside the qualities of independence, open-mindedness and integrity in appointing judicial officers.The distinction between "representivity" and "diversity" is crucial. Representivity requires exact proportionality and the elevation of this criterion above all others.Diversity is based on recognition of the fact that in a plural society, institutions must draw on the experience and expertise of all sectors of society in order to do their work optimally. Diversity promotes quality. Representivity can undermine it.
The real intent behind the ANC's transformation agenda was exposed in a series of draft bills introduced in 2005. They represented an attempt by the executive to take control of the judiciary. They were condemned by top jurists before they were withdrawn in 2006. Recent reports suggest that Minister Radebe wants to reintroduce the Bills.
Given that the ANC has subverted many other independent constitutional institutions in the name of transformation, the DA believes that Minister Radebe's intervention in the JSC is a matter of grave concern. It is a cynical attempt by the ANC to influence the appointment of judges which can only be to the detriment of the judiciary and its independence. For while the JSC's final recommendation is confirmed by the President, the process of selecting that candidate is designed to be free of executive interference and to ensure an impartial and unbiased bench.
If the executive is allowed to interfere directly in the process of shortlisting candidates for the bench and in the systems and structures of the JSC, the very purpose of an independent judiciary is undermined.
The DA will continue to resist the ANC's cynical and self-serving brand of transformation. We will defend judicial independence and advocate real change by lobbying for improved resources, facilities and training of judicial officers to enhance the effectiveness, dignity and accessibility of our courts. Because without an independent judiciary, constitutional democracy will wither on the vine.
This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, June 12 2009
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