Do judges have a role to play in politics or their role is confined to interpreting the law and conflict resolution? The concept of the rule of law clearly delineates the roles of the three organs of the State namely, the Executive, Legislature and the Judiciary. Whilst the first two organs ordinarily comprise members elected into office by the electorate, the latter organ has members nominated and appointed to hold office as judges of the country. These three organs of the State are expected to be independent of each other and as such regardless of whether others are elected by the people whilst those who act as judges are ordinarily nominated and appointed to their positions, that does not make the other two more powerful than the judiciary neither does it give the politicians the right to harass members of the judiciary. They must all work within the scope of the mandate given to them by the Constitution of the Country and yet some politicians erroneously or ignorantly think that the Executive reserves the right to harass judges. The Executive must not undermine the judiciary even though the perception or presumably the reality is that they wield more powers than the judges because of their popular support from the masses. But whatever the case may be, once an individual secures office in any of the three organs of the State they are then expected to run those offices independently. However, this does not mean that these institutions particularly the Judiciary may not be criticised as they do their work. They are all institutions of the State and as such are subject to public scrutiny but any criticism must not scandalise or demean their standing in the public eye, otherwise they will lose public confidence.
In this regard, therefore, the preservation of the independence of the judiciary is critical as one of the basic principles flowing from the concept of the rule of law. Regrettably some politicians have on numerous occasions threatened the judiciary and in some cases rogue political fanatics are rented by some unscrupulous politicians to intimidate judges as a way of interfering with their independence. The ANC Youth League is unhappy with Judge Larmont’s decision adjudging the ‘Dubul ibhunu’ song as hate speech. The alleged fear of the ANC Youth League is that the decision threatens not only free political speech but the history of the liberation struggle in South Africa. They plan to lobby the Parliament to protect liberation songs like this as well as to march to the Constitutional Court to demonstrate. The plan by the overzealous ANC Youth League to march to the Constitutional Court on this issue is not only an affront to the rule of law but embarrassing for the main ANC Party. What do they expect the judges of the Constitutional Court to do if they march onto the Constitutional Court? Depart from proper legal reasoning and pass judgments that back Malema? The Legal brief reports that Malema is quoted as having said that ‘It was an unfair practice for a judge to decide something while the rest must simply accept it and that the League will not accept this unfair practice.’ This is not only a reckless statement but a declaration of war against the independence of the judiciary and the rule of law. President Zuma must defend the Constitution which he swore to defend on his inauguration against rogue elements in the Youth League. It is very clear that there is no commitment on the part of the ANC Youth League to respect the Constitution and the President must therefore intervene. If the ANC Youth League is unhappy with the Equality Court‘s decision then they must against that judgment.
Of late there have been reckless statements from the ruling African National Congress (ANC) targeted at the judiciary but veiled as demands for transformation of the judiciary. The South African government and the ruling ANC party have suffered the embarrassment of losing in politically important legal matters and the response of the ANC has been that there is a concerted effort to embarrass government by the judiciary and civil and yet the government has resources to employ the finest legal minds in the country to give them good advice. For instance, when President Zuma followed a wrong procedure in seeking to extend the former Chief Justice, Sandile Ngcobo’s term of office people like Gwede Mantashe and Ngoako Ramathlodi charged that there is a deliberate initiative in the country to embarrass the Presidency. Particularly Mantashe is quoted as having said ‘My view is that there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament...Unless this issue is addressed deliberately, it is going to cause instability.’ Malema escalated the accusation by playing a race card and his comments are to say the least contemptuous of the Judiciary. Are these genuine concerns from the ANC or they are simply attempting to pass on the blame for the bad legal advice or none of it to the judiciary? These kind of statements cast doubt on the ANC’s commitment towards the protection of the rule of law and independence of the Judiciary. What is scary for the judiciary is that these statements are coming from senior member of the ANC and are a mirror reflection of the thinking at Albert Luthuli House. So dangerous is this thinking that it dawns a new epoch of judicial harassment in South Africa. Just like in many African countries, the ANC will only be pleased to work with a weak judiciary that will listen to the Executive.
There is need for the ANC to do a self introspection as a party and desist from passing on the blame for their failures to their perceived enemies. For instance how does a song like 'Dubul ibhunu' add value to modern South Africa? The white minorities no longer control the State treasury and the very same black government that is in power is failing its people. The South African government has assumed wrong priorities. They busked in the pleasure of hosting the first World Cup Soccer tournament to be hosted on the African continent instead of building and providing housing, sanitation and roads for the people living in the informal settlements of Orange farm, Alexander, Roodepoort and such other informal settlements dotted around South Africa. The Zuma Administration promised to create one million jobs when his administration came to power but that has remained a pipe dream for many jobless South Africans. These are the bread and butter issues for people in any society and not to waste their energies on fighting for a song that is past its relevance even though its value is in history. The scapegoat is now the judiciary and one hopes that South Africans will not be hoodwinked into believing this unpleasant rhetoric. Instead of issuing scandalising political rhetoric against the Judiciary, they should follow the correct procedure of appealing against the decision of the Equality Court and hopefully one day the Constitutional Court will make a firm legal pronouncement on the constitutionality of this issue.
There is serious danger to the rule of law and the independence of the Judiciary when politicians start pointing fingers at the third arm of the State. Such irresponsible statements encourage people to rise up against men and women who man our courts leading to breakdown of law and order. This is not fantasy but it has happened in other Southern African jurisdictions before. Unless these misguided expressions are halted people like Malema will soon defy legitimate court decisions because they think that courts must never question decisions taken by Politicians. This is the risk that South Africa faces. It looks like the Zuma Administration has a big problem with the Judiciary because they have some skeletons in their closets. The irony of the issue is that President Zuma was represented by a white man in his rape trial and when Judge Van der Merwe acquitted him at the end of his rape trial, Malema and others did not say a thing about transformation. When they used another white senior counsel to wade off Zuma prosecution in his arms procurement corruption allegations, again no issues of transformation were raised. The problem is that when the ANC succeeds in their legal battles using white lawyers nobody talks about transformation. Perhaps they are simply bad losers.
Transformation is critical and in any jurisdiction there must be a right mix of racial colours on the bench but judicial appointments must be based on merit and not political inclination of the individuals. Transformation must be an evolutionary process and not a once off event. In transforming the judiciary the idea is not to appoint individuals who are pliable to political demands or those that have political sympathy for the contemporary administration but must be an opportunity to appoint previously disadvantaged experienced and competent men and women to the bench. Judges who benefit from this transformation process must not accept to be used as political tools and as such they must defend the rule of law to its bone. One hopes that the concept of transformation that ANC is talking about is not one that involves the weakening and manipulation of the judiciary by appointing political tools on the judicial bench to fix ANC's political worries. That is not the desired transformation. In any case, transformation is a wide concept that does not only cover issues pertaining to appointment of judges but must address issues of how accessible, efficient and legitimate the judiciary should be in serving the public and not a few highly placed individuals.
It is certainly within the power of the Zuma Administration to begin the necessary engagements with the relevant stakeholders on transforming the judiciary but what is not acceptable are the vicious threats and the scandalisation of the Judiciary by the ANC especially on a matter that is within their purview. Any threat to the rule of law is likely to have a systemic effect on the whole political economy of South Africa and therefore South Africa has a chance to learn from the mistakes of other countries in Southern Africa and manage this process properly.
