Transforming the judiciary is critical for the African's progress: Africa can never assert his full independence until he is able to exercise, interpret and implement the laws that shape his environment according to his understanding of reality.

There is no doubt that the transformation of the judiciary is a fundamental pre-requisite for the African to consummate his political and economic independence. It is a necessary progressive phase in the self-actualization of the African as he takes total control of his environment.  Of course this transformation will be highly contested emotionally and otherwise by any minority grouping or opposition party more out of fear for its economic and social interests than for posterity. I therefore, fully support the minister of justice, Jeff Radebe, on his estimations with regards to the transformation of the judiciary

I am definitely not a legal expert but it is quite obvious to me that the African can never claim his full independence until he is able to exercise, interpret and implement the laws that shape his environment according to his understanding of reality.

Looking at the issue of transformation of the judiciary as a lay man, I would say the interpretations and implementation of any law have been and continue to be highly dependent on the inclinations, imaginations, dispositions and historical experience of those that are given the responsibility to do so; the judiciary.

It has nothing to do with what is actually and objectively fair but what is perceived to be objective andfair given the idiosyncrasies of the judiciary and the context within which they must judge and express their opinion on what is "right".

The perceived fairness or correctness of any law and its application is hugely dependent on historical factors such as one's social standing, education, exposure and more important one's view of how the world operates. Of course one's perception and experience of racial discrimination has a huge role to play in how one perceives the world and what one perceives fairness to be. We do not have to go far of this but look at the American justice system and its treatment of black people.

In South Africa the racial question has not resolved itself and if this government is to be seen to be responsible for the well-being of a majority that is black, it must by providence, be seen to promote the transformation of our judiciary so that its profile reflects that of the society it seeks to judge.

In other words the judiciary in South Africa must predominantly consist of blacks at all levels were the law must be applied. Without this there will continue to no calibration between the motives of those who have the responsibility to maintain laws of this country (the judges) and the actors who shape the socio economic architecture of this country ( the blacks).

Let us not be naive and accept that during apartheid and colonialism, laws were interpreted from a perspective of race and there are numerous instances in the past where the final, accepted truths and standards were set by the ruling class i.e. white minorities. Most laws were there to protect minority economic and social interests whether they were civil commercial or criminal.

An example that comes to mind for me, is the pillage that Cecil John Rhodes did in Africa. This was interpreted as a "good" thing by the crown because it benefited the crown and enlarged the empire. At no time was Cecil John Rhodes hauled before the courts and accused of crimes against humanity and theft and abuse of Africa's natural resources. He was actually rewarded for this pillage and no law or juduciary stood in his way.  Of course that would have been the case because the perception of fairness and what was perceived to be correct then was significantly different form now.( Note that here I am not supporting the pillage of Africa by Africans!)

For me this very fact shows that African societies have evolved through political independence and the perceptions of a new reality must be interpreted and implemented by those who understand the new context and these are largely black people.

I have recently been a student of African political history and haven been trying to understand the philosophies and context in which Africa experienced its politics. There is unfavorable historical fact that ultimately all the events, institutions, laws and practices were merely established and interpreted to protect white minority capital and the advancement of the Western economic and political interests. All assassinations, economic projects, imposition of political leaders, appointments of the judiciary, administrators and civil servants undertaken in Africa  during that time, sought to enhance the economic benefits of the West and local minority groups. That is the context from which we come from.

It is easy to therefore conclude that all the institutions that we inherited here in South Africa including the judiciary were past instruments used merely for the protection and enhancement of minority economic and social rights. That context, thank goodness, has changed and so must those who are given the responsibility to apply the law. The transformation of the judiciary is therefore critical for the progress of the African. I do not see what is difficult to understand about that and why the minister must spend much energy to defend that position

Of course a black judiciary can be abused to protect the interests of the new black ruling class, just as it was abused to protect the interests of the whites in the past. What will prevent that is not its color, but the deepening and practice of democracy.

The education and the general upliftment of the black masses is critical so that they are in an economic and a social position to interact and challenge the interpretation of laws by that black judiciary and protect their rights. That is what did not happen in Zimbabwe because the black judges were weak and compromised and the middle class was weak and afraid to protect its rights.

As blacks we need to protect our social and economic interest by ensuring that first we force matters and ensure that no ruling party has cart blanche and second that we have a strong opposing black voice that ensures that standards in the judiciary and the delivery of justice to the masses is not compromised by the interests of the ruling class. I shall be articulating my dispositions on Africa's primitive democracies at another time but suffice it to say here that, our imminent challenge is to purge the primitive democracies of Africa and the judiciary plays a key role in that.

I think that in South Africa  much will depend on the strength of the black middle class and not whether we have black judges or not. My observations are that unfortunately the black middle class is standing by the sidelines and watching all these critical debates pass by. This is a huge problem that can only compromise meaningful social and economic transformation in South Africa.

Vince Musewe is an economist and you may contact him on [email protected]

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