Political Power Of Our Courts Should Not Be Misjudged
blurb:isstoday:14102008sacourts
14 October 2008: Political Power Of Our Courts Should Not Be Misjudged
To avoid conflicts of interest - where private interests may unduly influence their official decision-making - judges in South Africa will soon be subject to a new disclosure regime, similar to that of parliamentarians. Once signed into law, the Judicial Service Commission Amendment Bill establishes a binding code of conduct for judges, requiring them to make annual declarations in a publicly accessible register. It also bans them from any outside employment as they are paid a salary for life. These measures resonate with recent calls by Chief Justice Pius Langa for the need to pay judges sufficient remuneration so as to nullify any incentive to search for additional employment or benefits outside the judiciary.
Such as system will introduce an unprecedented level of accountability for judges in South Africa. It should also enhance the independence of the judicial system and protect judges from criticism. Through disclosure and transparency judges can show that there are no visible external political and business related influences on their judicial decisions.
Yet, judges will continue to influence the political arena a more obscure and indirect fashion. Although judges are traditionally thought of as non-political actors, with their role being limited to dispensing with justice, this image is very misleading. Modern judiciaries are both legal and political institutions and offer judges numerous ways to act ‘politically’.
Judges are sometimes policy makers. Consider the inherently political role of the judiciary in countries like South Africa where the Constitutional Court has the authority to instruct politicians to enforce or reject certain laws and policy to meet constitutional obligations. Written constitutions such as ours significantly enhance the ability of judges to inform policy – and, as such, act politically. The courts have exercised their political power in this way through landmark judgments such as the Grootboom case, which dealt with the right to Housing, and the Treatment Action Campaign case, where the courts ordered the government to provide pregnant HIV-positive mothers with the antiretroviral drug nevirapine.
Individual judges can also be political by being subject to external biases from political bodies that may exert influence of the judiciary, such as political parties or parliament, particularly in the appointment process. In the United States, the life-long appointment of Supreme Court judges by the American President has led to a well-recognised pattern of political appointments. In France, judges appointed to the Constitutional Court are often subject to excessive political interference.
Individual judges are also influenced by their own internal bias and prejudices, which can creep into the judiciary through the values and socialisation of its members. Here, it is not how judges are recruited but who is recruited. The demographic and cultural composition of the judiciary during apartheid ensured that most judgments upheld the dominant ideological discourse of racial and gender-based discrimination.
Some judgments even have the capacity to reshape the political landscape, particularly when they arbitrate between political institutions or key political figures. The recent judgment by Judge Nicholson on Jacob Zuma’s appeal linked to the arms deal was a case in point. Setting aside its merits, this judgment has set in motion a series of events that have irrevocably changed the political landscape in South Africa. The first is the downfall of a president. Inferences in Judge Nicholson's ruling that the executive might have interfered in the decision to prosecute Jacob Zuma has been cited as the catalyst for the removal, by his party, of former President Thabo Mbeki from the highest office. A new set of legal battles arises. Mbeki is now defending his reputation through an appeal to the Constitutional Court to seek permission to intervene in the Jacob Zuma matter, claiming a violation of his constitutional rights. The recalling of Mbeki by the ANC was an extreme political solution to the implications of the ruling.
Importantly, the judgment has also in part vindicated the Zuma-led faction, lending support to their arguments that Zuma was discriminated against by political forces. This highly motivated and well-organised political faction may not represent a majority in parliament, or even larger society, but they are now buoyed to further push for a political solution to Zuma’s legal malaise and ensure their hold on state power after the 2009 elections. The arms deal is the joker in the pack. Despite Judge Nicholson’s recommendation that a formal Commission of Enquiry be opened to bring finality (and justice) to the on-going arms deal saga, closure may be unattainable. Political will to open such an investigation remains doubtful. Truth and fact may be reduced to several ongoing legal battles that tap into aspects of the arms deal – the National Prosecuting Authority’s fortitude to recharge Zuma is probably somewhat diluted and is yet to be announced.
In reality, the judgment may even have unforeseen consequences for public perceptions. Voters are bound to judge the ANC’s response to the ruling, culminating in the axing of Mbeki, and the ushering in of interim President Kgalema Motlanthe. The new political terrain may also see a re-energised opposition block contesting for a greater share of the political space by taking advantage of the ANC’s current instability. The effects of the past weeks on the 2009 electoral outcome depend, in part, on how successful the ANC is in creating a sense of party cohesiveness in months to come.
These varied and far-reaching political outcomes do not imply that Judge Nicholson’s actions were shaped by political considerations or pressures, nor was it his intention to meddle in political matters that belong to party politics. As he stated, “I serve only the Constitution’. Yet, even the most independent and non-partisan rulings can have far-reaching consequences for the politics of citizens. As the (political) role of South Africa’s judiciary develops, inevitable tensions will continue to emerge that force us to rethink the conventional separation of law from politics. Our judiciary is independent and non-partisan and yet judges are often called upon to be self-fashioned policy makers, and to judge impartially over matters that are most political, whilst being unaffected by numerous political influences. Recent events in South Africa remind us how politically meaningful the judiciary can be. Nonetheless, this political role is to be welcomed. Although we should remain mindful of the dangers of a politicised judiciary, our capacity to settle contestations of a political nature through the courts is healthy for democracy. By channeling political battles through non-partisan institutions, such as the courts, we effectively reduce the potential for conflict.
Collette Schulz-Herzenberg, Senior Researcher: Corruption and Governance Programme, ISS Cape Town
