"Africa doesn't need strongmen; it needs strong institutions." These were the words of President Obama in his speech in Ghana last Saturday. "In the 21st century, capable, reliable, and transparent institutions are the key to success -- strong parliaments; honest police forces; independent judges." At this point there was loud applause from his African audience.
The DA joins that applause.
An independent and competent judiciary is the foundation of a successful democracy not only in the 21st Century but in any century. Without the rule of law there can be no free and prosperous civilisation, and without an independent judiciary there can be no rule of law.
The DA believes unequivocally in an independent judiciary. But does the ANC?
Does the ANC believe that the purpose of the judiciary is to serve the people of South Africa and dispense impartial justice, or to serve the ideology of the ruling party?
In formal public statements, the ANC claims to support the former proposition. In its actions, it increasingly promotes the latter. The implications for our young democracy are ominous. The ANC has been moving to undermine the independence of the judiciary on two fronts, legislative and institutional.
On the legislative front, Justice Minister Jeff Radebe has indicated that the proposed Superior Courts Bill could resurrect the government's attempts to bring the administration of the courts under the Minister of Justice, an ANC politician. If the still-to-be-tabled legislation re-introduces the ANC's plan (which was withdrawn after a public outcry last year) it could result in the executive determining which judge should hear a particular case. This would completely undermine the independence of the judiciary.
On the institutional front, the ANC is attempting to subvert the Judicial Service Commission (JSC) by turning it into a thinly disguised party instrument. The JSC is the constitutional body that nominates and recommends candidates for judicial appointments. It has 23 members, representing political, professional and educational aspects of the legal fraternity. 12 of these are now either ANC politicians or appointees of Jacob Zuma. So already the ANC has a majority in electing judges to the Constitutional Court. The newly constituted JSC faces its first major test in selecting four judges to replace the retiring Constitutional Court judges.
In selecting judges for provincial High Courts, the provincial Judge President and Premier also serve on the JSC. This means that the ANC would also have a built-in majority when the JSC sits to consider judicial appointments in every province, except the Western Cape where the ANC lost the premiership to the DA.
Last month the Minister of Justice, Jeff Radebe, took the unprecedented step of bullying the JSC into postponing interviews for judicial appointments. There can be little doubt that the ANC demanded the postponement in order to win time to change the composition of the JSC to secure a majority of ANC appointees, which it has subsequently managed to do. This will enable the ANC's carefully crafted majority to choose the four new Constitutional Court Judges to replace the outgoing retirees.
Disingenuously, Radebe claimed that the postponement was needed to consider "the enhancement of the independence of the judiciary and the vital question of the transformation of the judiciary". This is an example of Orwellian ANC-speak, where "transformation" does not mean overcoming apartheid's racial inequities, an objective the DA supports. It means "cadre deployment", which is code for the appointment of party cronies who can be relied upon to put the interests of the dominant faction in the ruling party above all other considerations. This type of "transformation" is the root cause of the problems to which President Obama referred in his seminal speech.
"Transformation" by means of cadre deployment tightens the stranglehold of the ruling party's "strongmen" over state institutions. It inevitably leads to the demise of vibrant, independent institutions. And, over time, it results in the tragic phenomenon known as the "failed state". During the past 15 years we have learnt that the ANC's focus on "racial representivity" is actually a fig-leaf to disguise party patronage.
This is quite clear in the debate on "transforming" the judiciary. Although the DA rejects race labelling (because we believe that people should be judged on their character and their contribution, not on their colour), it is nevertheless apparent that by the criteria of racial head-counting, the judiciary is significantly "transformed". Nearly 90% of the judges appointed since 1994 are black, and so are 112 of 205 judges countrywide. The Chief Justice, Pius Langa, the President of the Supreme Court of Appeal and all but one of the provincial Judge Presidents are black. In this context, making "transformation of the judiciary" the top priority for the administration of justice, exposes the ANC's agenda for what it actually is - a determination to extend its control.
This is even more apparent when one considers how the ANC has misused its power to remove an opposition representative on the JSC. The National Council of Provinces (NCOP) is entitled to four delegates on the JSC. Last week the ANC removed the DA's Darryl Worth and replaced him with Ms Grace Boroto of the ANC. So now all four NCOP delegates in the JSC (100% of the provincial delegates) are from the ANC. Opposition parties have no NCOP representation whatsoever, even though an opposition party, the DA, won a province off the ANC on April 22 this year.
The President of South Africa designates four delegates to the JSC after consulting the leaders of parties represented in the National Assembly. President Zuma did so this week. The DA supports two of his candidates, Advocate Ismail Semenya SC and Advocate Dumisa Ntsebesa SC. However, we have serious reservations over the other two, Advocate Vas Soni CS and Ms Andiswa Ndoni.
While acting as a judge, Soni gagged the Mail & Guardian newspaper and prevented it publishing an exposé of the improper payment of R11 million of tax-payers' money from Imvume Management into the ANC's election coffers. He ruled that that M&G's story was not of overwhelming interest. Subsequently PetroSA, the state entity from where the money had come, admitted it had erred and the ANC returned the money. This calls into question the impartiality and competence of Soni's judgment.
The DA also has grave doubts about the ability of Ms Ndoni to give impartial advice on judicial appointments. On 12 July 2009, the Sunday Times reported her saying that as a delegate on the JSC she would be advocating a "clear transformational stance", suggesting her recommendations for legal appointments would be made on the grounds of a political agenda rather than legal excellence. In her personal capacity and as president of the Black Lawyers' Association, she has made it clear that she thinks Justice Hlophe is a victim of racism. It is not for the DA to say whether Hlophe is innocent or not but we must point out that there are unanswered questions about his conduct, some of which will be taken to the Constitutional Court.
On these grounds the DA does not believe that either Adv. Soni or Ms Ndoni is suitable to serve on the JSC.
The adage that "actions speak louder than words" was never more relevant than it is in the debate on the future of the judiciary. We agreed with President Zuma when he said in a keynote speech at the Second Judicial Conference in Pretoria last week, that "transformation" should go beyond the composition of the judiciary and should mean greater access to justice - physical, financial, linguistic and cultural.
But the President is a master at tailoring his message to his audience. We wait to see what the ANC actually does, and the signs are ominous. There is every reason to believe that the ANC will carry on in its well-worn "transformation groove" and deploy its cadres to every institution of state, to do the bidding of the dominant faction in the ruling party.
Democracy requires constant vigilance. No facet of democracy is more important than the rule of law and none requires greater vigilance. The DA will be keeping a very close watch on the functioning of the JSC and the bills affecting our judiciary. We shall be quick to commend any ANC measure that strengthens the independence of the judiciary and quick to condemn any that undermines it.
This article by Helen Zille, first appeared in SA Today the weekly online newsletter of the leader of the Democratic Alliance, July 17 2009
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