How to Lose the Fight: Part II The Judiciary

It is fairly easy to establish that the relationship between media outlets and the representatives of the ruling party and government is untenable. Of course, there is always the possibility that the latter will succumb and, where the criticisms are justified, reform themselves accordingly or be replaced. Unfortunately, this seems the less likely scenario. Given the fact that the media have played a critical role in exposing corruption, lack of service delivery and inconvenient political realities, the alternative scenario in which it is fatally compromised by its own excessive hostility, tabloid-style reportage and insufficiently critical coverage of non-government actors is not a pleasant one to contemplate.

At least as disconcerting is the prospect of a politically compromised judiciary, of the kind we only recently began to slough off. In this second piece I want to argue that a very similar process to the one described regarding the media is playing-out in relation to that societal institution. Very recently there appears to have been some realisation of this possibility, for two reasons: the appointment of Mogoeng Mogoeng as chief justice of the Constitutional Court; and, the ruling of judge Colin Lamont on the singing of 'Kill the Boer'. Initial media reports on the latter painted the ruling as another blow to Julius Malema, but it was patently obvious to anyone with any feel for popular opinion that if anything the reverse was likely to be true. Sure enough, this realisation eventually trickled through and various pundits, as well as the DA, lined-up to do the improbable and criticise the ruling as a means of taking the wind out of the ANCYL's persecution sails. (It is far from clear to to me that these groups, or indeed groups like COSATU, would have been quite as critical in the absence of the Malema factor).

The Mogoeng Mogoeng selection also led to a few instances of regret and recrimination, because of course we would never have ended-up with him if there hadn't been such an, again somewhat hysterical, outcry initially around the reappointment of Sandile Ngcobo. Now, strictly speaking Ngcobo's reappointment would have been against the letter of the law. However, even without much knowledge of jurisprudence it seems simply obvious that it is rarely desirable to see existing laws as sacrosanct. If nothing else, that implies perfect foresight of the original drafters as regards possible practical eventualities, such as the one with Ngcobo. So while legal brains were quick to hail the Constitutional Court's ruling against the legislation that would have allowed Ngcobo to continue (see, for instance, the generally good blog by professor Pierre de Vos) as a victory for the independence of the judiciary, the President quickly dispelled such thinking with his nomination of Mogoeng. In particular, it made rubbish of the Constitutional Court's rationale for its ruling, that "What matters is that the judiciary must be seen to be free from external interference."

So much for that. Zuma has wielded his power anyway, although in choosing a former Bantustan judge over someone who was on Robben Island and appears to be a better candidate on merit, he has shown just how much the ANC is prepared to cut off its nose to spite its face. (This has also been done in relation to socially progressive legal minds like Geoff Budlender and others). Perhaps this is just knee-jerk politicking; "if the liberals like Moseneke then I will choose a bigot", or some such. However,  I suggest there is more to the ANC's behaviour (these views are as much those of the organisation as of the Presidency) than that.

In my mind, the origins of this behaviour can be traced back at least as far as the methods used by the Treatment Action Campaign, who conducted an extremely successful campaign for public provision of antiretroviral treatment for HIV/AIDS. What on earth, you might think, do they have to do with it? Well, it was the former chairperson of the TAC - Zackie Achmat - who spoke about 'getting at your judges outside of the courtroom'. And the TAC was extremely successful at doing this, with the assistance also of their friends in the media. Now, you might say, that was for a good cause. That's all well and good, but either you believe in the 'independence of the judiciary' or you do not. And the fact is that the founders of the TAC, along with those who have followed in their footsteps - from Afriforum to some others I will avoid naming for now - believe that the judiciary should be independent, except when it comes to issues they feel have self-evident conclusions. So, the logic would go, the judiciary should be independent except when it needs to come under moral suasion to rule in favour of antiretroviral roll-outs, since a wholly independent assessment may not yield the desired outcome. Needless to say, the argument is rarely phrased in this way, but I do not find it persuasive regardless.

  

Besides such blatant attempts at advancing lobby group agendas through personal relationships with the judiciary, there is the broader idea that seems to have spread through the South African liberal ether that the courts and the Constitution are the solution to government failing to uphold its obligations. In the short-run that may be true, but not in the longer term. As with many mistaken conclusions, these are based on mistaken premises. One of these is that the Constitution is sacrosanct. In some cases this is a genuine belief, in others the hope appears to be that by repeating the claim often enough it will become effectively true. Both, I would suggest, are dangerously flawed. The Constitution, the content of which I agree with almost entirely, was never a consensus document in its detail. Let me repeat that: the Constitution is not a democratic document. This is most evident when one contrasts public opinion on issues like the death penalty or homosexuality with the clauses of the Constitution or legal interpretation thereof.

The Constitution is a document that is a product of what some of us like to think are enlightened individuals and social processes, but it can be destroyed and undermined by individuals and social processes. Furthermore, the document is subject to interpretation by the judges of the Constitutional Court. These too are the product of certain social backgrounds and judicial selection procedures. In short: the Constitution cannot be seen as the last bastion of social virtue into which we can perpetually retreat to fight-off assaults and re-emerge triumphant. One day we may turn around only to find the structure itself compromised. And, indeed, that process may now have begun. One must also remember that the Court's status in society is less a function of law than of popular perception, and the willingness of enforcement agencies (such as the police and other agencies that actually fall under government) to ensure compliance with its orders. I have been surprised to find that even individuals well-trained in law seem to neglect these obvious facts; the reasons are perhaps more psychological than logical.  

These issues do not only arise as regards legal action against government relating to Constitutional obligations, but can also arise in relation to civil society action against private entities. I have been tangentially involved in a recent attempt to use the courts to enforce environmental legislative protections on a private company that the government had seemingly decided to turn a blind eye to. That attempt received a significant setback when the government (who should have been the enforcers) and company came to an independent agreement – while the matter was pending in the courts. One can speculate on how this was achieved, but the company clearly found a way of bypassing the formal channels favoured by civil society. (This is of course another point often neglected by liberal commentators and activists: private sector entities have few qualms going along with all sorts of skulduggery provided they are able to secure adequate benefits for themselves). Much as one can get to judges outside the courtroom, so too can one get at civil servants outside of the office, or through their political masters. The law is an extremely slow, and surprisingly weak, tool when other institutions are opposed to its processes and conclusions.


Even where lobby groups like Afriforum do not have any influence on judges outside of the courtroom, they nevertheless bring to light the one very obvious sense in which the judiciary is never independent: the judiciary can only rule on cases brought to court. If there is any lack of representation in the issues that get brought before the courts, then to the layman judicial rulings may appear biased even if they have been essentially objective. This, along with the other issues outlined above, should give those groups who seek to enact social change through legal means pause for thought. Their short-term successes may sow the seeds of much greater social problems down the line. All too often such groups are completely inured to this kind of logic, because they are so taken with their own benevolence and moral righteousness.

So as with the media, it is not just a matter of ineffectiveness or bias. The strategies outlined above not only put implicit strain on the institutions through which the battles are fought, they also have the effect of painting a bulls-eye on each of these institutions as the prime obstacles to the advancement of individuals and groupings within the ANC and government. We have seen the effect of that in the case of quasi-governmental institutions like the Scorpions, and the continuing pressure on the Public Protector and Special Investigations Unit. While the Protection of Information Bill has been stopped for now, influential individuals like Pallo Jordan, Ronnie Kasrils and other ANC veterans who still genuinely believe in the organisation's principles will not be around, or have as much influence, for very long. The decision regarding the chief justice has been made, and the main body tasked with trying to maintain high quality judicial selection procedures - the judicial services commission - appears to have been stacked with intellectually shallow political yes-men.  

While there is a huge amount of effort expended in skirmishes like those around 'Kill the Boer', as I noted in my previous posts regarding the civil service, there is a singular lack of effort being made to ensure that government recruitment processes are such that they select the best and brightest. As I suggested there, this is partly because liberals are suspicious of government as an entity and would rather see its powers minimised. People are entitled to such an opinion, but there is little to support the suggestion that the size of the state can be significantly decreased in South Africa, or that the society is at a stage where that would be desirable even by those who might wish for this. More to the point, and this is where I am going with these two pieces, is that you cannot enact change solely from outside of government and the ANC. Any short-term successes achieved through attempts of this sort will be dwarfed by the long-term destruction of the institutions used to achieve those successes.

Already we have dangerous mutterings coming from senior members of the government and ANC. In a recent ANC Today letter, Bathabile Dlamini - Minister of Social Welfare - stated: "The manner in which racist organisations are using spaces like the Equality Court to advance their narrow issues may result in the masses losing confidence in these institutions and lay the basis for backlash". Or consider Ngoako Ramathlodi's piece entitled  "The ANC's fatal concessions" in which he essentially appears to argue that having a progressive Constitution and civil liberties was due to a series of concessions that the ANC should now regret. He correctly identifies the issue of what cases are actually brought to Court, saying "a constitution can either be progressive or reactionary, depending on the balance of forces in the society it governs". His conclusion is then that "he black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society".


With the exception of the economic aspect, this is largely ridiculous given: a. the massive power wielded by the State; and b. the fact that civil society is no less the domain of the ANC and its affiliates than, say, the DA. What his conclusion actually reflects is the wholesale failure of the ruling party to make itself part of a dynamic, progressive civil society movement. The ANC is shunned by civil society movements across the political spectrum, but Ramathlodi and others who share his views don't care to stop and ask why that is the case. Furthermore, his conclusion reflects the failure to develop a competent and principled civil service that would not submit legislation that either aims to violate the Constitution, or is so sloppily drafted that it gets overturned by the courts.


These are, indeed, dangerous times. The ANC and government itself are increasingly compromised by incompetent and self-serving individuals in positions of power. The evidence and symptoms of this must of course be exposed and dealt with where possible. But every overly hysterical or self-indulgent media report or legal case ratchets-up the pressure on our key social institutions. Furthermore, we are going to need a lot more than legal cases and media reports to reverse the current trends. I suspect this will require some creative thinking and action on the part of those who would once have supported the ANC but now distance themselves from it. One way would be for that organisation to be 're-taken' by genuinely progressive rather than avaricious individuals, so that - for instance - we do not have individuals like Tony Yengeni heading-up the ANC's political school, or Jimmy Manyi acting as government spokesperson. The other would be for a new party to form. These are extremely difficult things to do successfully. Worse, these tasks are made harder by the ostensibly well-meaning, righteously hysterical groups that take-up a disproportionate amount of public space As always, it is the 'hard-liners' that prosper internally (in the ANC and government) from such attacks.


There are, then, no easy solutions. But those with good intentions would do well to look beyond short-term righteousness. Perhaps that is the one conclusion all parties could usefully take away from this analysis.