PRESIDENT ZUMA AND THE BALANCE BETWEEN THE EXECUTIVE AND THE JUDICIARY
The Centre for Constitutional Rights is deeply concerned about the comments that President Zuma made Tuesday in Parliament regarding the relative powers of the executive and the judiciary with regard to the formulation of policy. The President is reported to have said that he wished to "reiterate our view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation."
He added that, in his view, "the executive, as elected officials, has the sole discretion to decide policies for government. He warned against the encroachment of one arm of the state onto the terrain of another and insisted that "the executive must be allowed to conduct its administration and policy-making as freely as it possibly can." He added that "the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We must not get the sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections."
President Zuma was repeating points that he had made on 11 July when he had dealt with the "need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regards to government policy formulation". On that occasion he had expressed the view that the judiciary could not "when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government."[It is important to note that he was not questioning the power of the courts to strike down "illegal" legislation - but only their role in dictating policy.]
The President was no doubt reacting to a number of high profile cases that the government has recently lost in the courts.
In Richter vs the Minister of Home Affairs, relating to the right of South Africans overseas to vote in the 2009 elections, the High Court ruled that certain elements of the Electoral Act were unconstitutional. It ordered the government to rectify the situation by "extending the right to special votes to all categories of citizens absent from the Republic of South Africa." It also ordered the government "to ensure that all categories of citizens absent from the Republic of South Africa who are registered as voters will be entitled in terms of the Electoral Act to vote by means of special votes in the forthcoming general elections."