A POISON PILL FOR JUDICIAL INDEPENDENCE
Sugar-coating a new attempt to bully the courts fools no one
Sunday Times – South Africa 27 November 2011
BY MAMPHELA RAMPHELE, Executive Chair of the Letsema Circle and a board member of the Open Society Foundation
The cabinet decision on the judiciary this week seemed like a sweet offering, even a conciliatory gesture after the rancour of the secrecy bill fight. Cabinet spokesman Jimmy Manyi spoke of the independence of the judiciary, of enhancing the integrity of the Judicial Service Commission, of a mechanism that would promote the constitutionally enjoined obligation of cooperative government.
But all this was sugar coating, because at its heart there was poison for our democracy.
The core of the decision is that the role of the judiciary is to be assessed by an institute appointed by the government and that even the decisions of the Constitutional Court are to be subject to such assessment. This assessment, at the instigation of the executive, invites the assumption that the role of the courts, and the Constitutional Court in particular, as ultimate arbiters of our constitution is to be usurped.
There can be no escaping the impression that the cabinet’s cross-hairs are firmly pointed at the judiciary’s independence.
I know only too painfully well what it means when the judicial arm of government is cowed, is subjugated before the executive. Thirty-four years ago this month, the inquest into Steve Biko’s death was held. Despite the extensive and overwhelming evidence that Biko had been abused and murdered by the Security Branch, Pretoria’s Chief Magistrate delivered a verdict that exonerated each and every one of them. Counsel for the family, Sidney Kentridge, argued that such a verdict would give license to abuse helpless people with impunity. And it did. Scores died in detention in the years that followed.
A journalist wrote at the time: “There’s no word of sorrow or anger by the authorities, not even a suggestion detainees in future won’t suffer the same treatment. They just don’t care. And that is what South Africa voted for.”
And of course, that is what the small white electorate voted for.
Had the judiciary not been under the thumb of the executive, there is no guarantee that the chief magistrate would have reached a different verdict. But if the magistrate had had the assurance that finding the state culpable, that assessing fairly and independently would have earned him no recrimination from the executive, there is a much greater likelihood he would have delivered a just verdict.
Thankfully, we live now in different times. And yet the importance of strong, independent courts able to check government folly when it occurs remains. In the Treatment Action Campaign case, the Constitutional Court famously held that the government’s then policy of distributing Nevirapine, medication reducing the transmission of HIV from mother-to-child, to pregnant mothers living with HIV at only two clinics per province was in breach of the constitution’s right of access to healthcare – and unreasonable, given that the manufacturers of Nevirapine had offered it free of charge for two years and that the World Health Organisation had concluded that Nevirapine was an appropriate intervention to prevent mother-to-child transmission.
Who knows how many lives have been saved as a result of that decision. A cowed court, a court unduly fearful of executive repercussion could not have made such judgment. That the Constitutional Court did, that policy was altered, is a reflection of the health of our democracy, a tribute not only to our courts, but to our executive and legislative branches as well.
From our past, to our near past, the Constitutional Court is almost certain to be the next staging ground in the fight over the secrecy bill. Recent pronouncements by the executive highlight the fear that policies decided by a government elected by the popular vote will be countermanded through the courts. And our President is not wrong when he says: “Political battles must be fought on political platforms.” But majorities in parliament in South Africa and elsewhere – are not determinative of the constitutionality of laws made. Where there is concern for the legality or constitutionality of a law, courts must make the appropriate determination.
In many respects, the Constitutional Court is the bellwether of our democracy. It was the most significant new institution created at the time of our constitution’s enactment.
Interference with the court, implicit in the suggestion that its judgments and record are to be assessed, sets us back on the path to our constitutionally envisaged future.
And the sleight of hand – the cabinet’s talk of the need to “affirm the independence of the judiciary” through an assessment that cannot but create the impression that the independence of even our very highest court is at risk – undermines our intelligence.
As if we, who have been fighting for democracy all our lives, would not know.