An independent judiciary requires an independent JSC

In the past weeks, the country's attention has focused on a person very few people had heard of before. Judge Mogoeng Mogoeng is now a household name - and our Chief Justice. As such, he holds one of the most pivotal positions in our constitutional democracy. Judge Mogoeng's appointment has been controversial because his past judgements and statements raise serious concerns about his commitment to defending the constitution and the independence of the judiciary. And in recent days, he aggravated these concerns by describing the judiciary as a "branch" of government, and himself as a government employee.

We have taken advice on whether to seek judicial review of Mogoeng's appointment, but have decided against it. He is now our Chief Justice, primus inter pares at the Constitutional Court, entrusted with the interpretation and protection of our Constitution. We respect his office and we wish him well. Above all, we hope that he will prove his critics wrong.

Nevertheless it is valid to ask some questions about his appointment. Even if it complied technically with the letter of the constitution, did the process reflect its spirit? Did it reflect the intention of our constitutional negotiators to prevent a situation in which a President could unilaterally appoint the country's Constitutional court Judges? I believe the answer is no.

The entire process of Chief Justice Mogoeng's appointment confirms the extent to which cadre deployment has, over the years, castrated our constitution. We have reached a point where legal academic Richard Calland's warning has come to pass. The process involved a "mere façade, elegant adornments to the real political action" that took place behind the scenes. Tough words. Let me substantiate them.

Firstly, the process of appointing a Chief Justice must be judged in its context.

At the "Access to Justice" Conference early in July, President Jacob Zuma warned the judiciary not to "subvert the powers constitutionally conferred on the ruling party by popular vote". He failed to recognise that the Court has a duty to strike down laws of Parliament that it determines to be unconstitutional.

On 18 August, ANC Secretary General, Gwede Mantashe, reportedly warned the Constitutional Court not to set itself up as an "opposition" to the executive and to Parliament.

These remarks reflect a dangerous and increasingly dominant train of thought within the ANC. More and more its leaders express the view that their electoral majority gives them the right to do what they like, unhampered by an independent judicial system, which has variously been described as subversive, disrespectful and undemocratic.

This is also why President Zuma and the ANC harbour such lingering resentment towards the Deputy Chief Justice, who reportedly said, with reference to the Judiciary: "it is not what the ANC wants......it is about what is good for our people". This innocuous and self-evident comment elicited a counter attack from the ANC's National Executive Committee, and is one of the reasons that Judge Moseneke has consistently been by-passed for promotion. And it has not escaped the attention of advocates and judges looking to advance their careers on the bench.

The ANC has now secured a situation our constitution ostensibly sought to avoid. While all eyes have been focused on Mogoeng Mogoeng, many commentators have missed the point that the real problem lies elsewhere. It is the failure of the Judicial Service Commission (JSC) to fulfil its constitutional mandate of protecting the "independence, impartiality, dignity, accessibility and effectiveness of the courts." Its primary role is to consider, interview and nominate "fit and proper" candidates for Judicial appointment by the President.

The reason for its establishment, during the CODESA constitutional negotiations, was to avoid a situation where the country's executive could effectively choose the judiciary, negating the checks and balances on power abuse.

Tragically, this is what has come to pass. The JSC has effectively become an extension of the ANC, giving a cloak of respectability to political pre-determination.

Instead of playing its advisory role to ensure the appointment of a Chief Justice from among the best possible candidates, the JSC effectively rubber stamped as "fit and proper" the President's pre-ordained choice. The JSC twice rejected the Democratic Alliance's proposal that other candidates be nominated for interview, leaving Mogoeng as the only candidate. Instead of providing the necessary filter to prevent power abuse, the JSC protected the President's single nominee from comparison with other candidates.

To be sure, they constructed an elaborate façade. Very few (if any) prospective Chief Justices have to endure 2 days of public grilling anywhere in the world.

But the die had been cast before the process began. It was best summed up by one of the President's nominees, advocate Dumisa Ntsebeza, who said in a letter to a colleague that the President had "in his wisdom" nominated Mogoeng. Ntsebeza announced that he had decided to "come out of the closet"..... "because of the savage attacks on a fellow black candidate by mostly faceless people who might not have the same struggle interests that we have".

This is the approach that I have experienced all too often when I have had the occasion to serve on the JSC in matters pertaining to the Western Cape bench. I have come to the depressing conclusion that the primary concern of the "ANC caucus" on the JSC is to execute a political mandate rather than protect the constitution. That is precisely the intention of cadre deployment.

But the failure of the JSC is not only due to "pilot error". It has a serious design flaw. The core problem is that the ruling party can control, directly or indirectly, a majority of JSC members. This undermines the "separation of powers" essential in any democracy, and renders the JSC incapable of fulfilling its primary mandate. Indeed, the prospect of controlling the JSC was probably the reason why the ANC agreed to its establishment at all during the Codesa constitutional negotiations.

This did not happen immediately. But the strategy became painfully apparent in June 2009 when Justice Minister Jeff Radebe bullied the JSC into postponing interviews for appointments to the Constitutional Court. He demanded a delay to win enough time to change the composition of the JSC to secure a majority of ANC appointees. This was achieved by removing the single DA delegate from the National Council of Provinces. Of the JSC's 23 members, 12 are now ANC politicians and appointees.

The predictable result has been various debacles including the decision by the JSC to "finalise" allegations against Judge John Hlophe by the Constitutional Court without holding a hearing. This was compounded by the JSC's recent decision not to fill vacancies on the bench despite the availability of outstanding candidates (because they did not fit the right profile).

The greatest irony of all is that defenders of the Constitution have to turn to the courts to overturn decisions of the JSC - the very body that was established to uphold the constitution and defend the interests of the judiciary.

As loathe as we are to propose constitutional amendments, we think it is essential to ensure that the majority of members on the JSC are not accountable to the ruling party's executive. That will require a constitutional change that we think is necessary to save our Constitution.

But in the end, no constitutional checks and balances can prevent power abuse in the long term, if voters do not accept primary responsibility for doing so. Unless they understand that their vote is their power, and unless they use it to remove a corrupt government, power-abusing leaders will be immune to sanction, secure in the belief that they will rule "until Jesus comes". If voters are prepared to accept this situation, they have only themselves to blame.

This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance.

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