ANC

There was no coup to oust Mbeki

Mar 18th, 2012

It is ironic that Reverend Frank Chikane now claims (in his book Eight Days in September: The Removal of Thabo Mbeki) that the removal by the ANC leadership of President Thabo Mbeki as President was akin to a coup d’état.

After all, Chikane loyally served President Thabo Mbeki through thick and thin: through his late night, Internet searches aimed at uncovering the “truth” about Aids (a “truth” peddled by crackpot Aids denialists); trough his undermining of Parliament when his enforcer, Essops Fables, forced the ANC members of Scopa to stop digging for dirt on the arms deal scandal engulfing the ANC; through his flouting of the constitutional provision that the National Director of Public Prosecutions had to act without fear, favour or prejudice (even when he needed to arrest an old Police Commissioner friend of the President) when he suspended Vusi Pikoli.

The claim is, of course, nonsense and has no basis in fact or law.

In his book, Chikane states several times that the removal of Mbeki was something close to a coup. On page 143 of his book he finally attempts to justify this extraordinary claim. He argues that given the 60%-40% support for Jacob Zuma and Thabo Mbeki at Polokwane, it was no forgone conclusion that 50% of the members of the National Assembly would have voted for a motion of no confidence in President Mbeki. He also states that the President could not have been removed legally and constitutionally from his post as President.

The Constitution, read with the Electoral Act, tells a different story. There are two provisions in the Constitution providing for the removal of a sitting President. Section 89(1) of the Constitution allows for the removal of a President on non-political grounds. It states that:

The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of: (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.

So, where the President is convicted, say, of fraud and corruption, or where it is found that the President had misused his powers to protect a friend in an unlawful manner, or when the President had a stroke and could not speak anymore, then two-thirds of the members of Parliament could remove that President from office. These grounds are “objective” in the sense that Parliament would only be able to impeach a President in this way if some factual basis existed to justify the removal.

But this is not the only provision allowing for the removal of the President from his or her position. Section 102(2) of the Constitution allows for the “political” removal of a President and states that:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

This provision relates to the system of Parliamentary government operating in South Africa. The President is elected by Parliament (the President is a member of Parliament for the few hours from his or her swearing in until his or her election after which he or she stops being a member of Parliament), all but two of the cabinet Ministers must also at all times be members of Parliament. This means that in theory the President and his or her cabinet must at all times retain the political confidence of the majority of members of Parliament. If the President loses this confidence, the majority can rely on section 102(2) and remove the President for any reason it wished.

Members of Parliament could therefore decide that they had stopped having confidence in the President, say, because the President had lost an internal party election or because he was supporting a neo-liberal economic policy or because he was unfriendly or because he was seen enjoying a drink with the leader of the opposition. It matters not what the reason is, if Parliament loses confidence in the President it can pass a vote by simple majority and that is the end of the President.

Now, in our system, with one party — the ANC – retaining more than 65% of the votes in the National Assembly, and with the imposition of strict party discipline on members of Parliament, the ANC could at any time instruct its MP’s to impose and vote for a vote of no confidence in the President.

If President Mbeki had refused to resign, he would have suffered the indignity of losing such a vote of no confidence. This is because every ANC member of Parliament would have been instructed to vote for the motion of no confidence. If they had refused, they would have been redeployed. If they had refused to be redeployed they would have been expelled from the ANC and would automatically have lost their seat in the National Assembly. They would then have been replaced with Jacob Zuma loyalists and that would have been the end of Mbeki. IF Mbeki refused to resign he would have been booted out in the most undignified way, so his agreement to resign was in his own interest.

There was therefore no way in which President Mbeki could have clung onto the Presidency once the ANC leadership had decided he had to go. That is the obvious consequence of our system of government and our electoral system, in which we vote for a party and not for individual MP’s who can make their own decisions and can defy the party leadership if they are brave enough. In South Africa defying the instructions from the party leaders is not brave, it is suicidal because one will eventually be kicked out of the party and out of Parliament, finish and klaar (as Mbeki’s crook of a friend used to say).

There was no coup d’état. There was nothing close to a coup. Instead there was a loss of political support for the President inside the ANC and like Tony Blair and Margareth Thatcher in the UK, he had to resign as a result of this. It is true that the ANC insisted on receiving a letter of resignation from the President, who insisted that the Speaker of the National Assembly had to receive this letter. It is also true that until the Speaker had been informed about the resignation it would not have had any legal effect. A letter sent by the President to his party signalling his intention to resign formally as President, would have calmed the waters, but it would not in itself have signalled his official resignation. All that was required from the President was to send another letter to the Speaker, something one assumes he was capable of doing.

Mbeki was no martyr. He was merely the victim of his decision to stand for a third term as ANC President so as to try and remote control the President of the country (a-la-Putin) while serving as leader of the ANC, something he would have been able to do for exactly the same political reasons his opponents were able to force him to resign: those who control the party, control the Presidency.

That is the way our system operates. This system is made worse by the fact that the way in which our Electoral Law is interpreted means that members of a political party can be redeployed to and from Parliament as the list of potential MP’s can be changed at various times during the life of the Parliament. Somebody can therefore be shifted from the Western Cape Provincial Parliament to the National Assembly and vice versa without too much trouble. This means that members of Parliament live in fear of their bosses. If you happen to be in the majority party (either nationally or in the provinces) those bosses are the very people you are constitutionally required to hold to account.

No wonder our national and provincial Parliaments are so weak and our Ministers and MEC’s often so imperious and arrogant. If we are talking about amending the Constitution, maybe this is where we should start.

We might think the system is anti-democratic or that it provides far too much power for party bosses and invites a blurring of the boundaries between the governing party and the state (which it clearly does), but until we change the Constitution (something the ANC will not do as it will weaken the extra-Parliamentary wing of the Party and will empower the Parliamentary wing of the party), there is nothing to be done about this.

Surprising insights on transformation from the Constitutional Court

Mar 13th, 2012

by Pierre De Vos.

63 comments

What do we mean when we talk about transformation of the judiciary and of the legal culture? Do the members of the Judicial Service Commission (JSC) and the President believe in the substantive transformation of the legal culture and legal doctrine away from its colonially-inspired formalistic roots and away from the deeply embedded assumptions about free choice and equal bargaining power, (assumptions that promote the interests of the wealthy over those who are marginalised, disempowered or poor)?

Or do they use the term rather disingenuously to try and justify the appointment of essentially anti-poor, deeply formalistic judges whose judgments will disregard the interests of the marginalised and might even champion the interests of the rich and powerful? Moreover, which judges are best placed to take on the challenges of legal transformation — within the disciplining boundaries of the separation of powers doctrine — and which judges merely cling to notions of legal formalism to the detriment of the poor and marginalised and in resistance to the transformation of the legal culture?

These questions are all raised by the fascinating Constitutional Court judgment in the case of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd, which was handed down today.

The majority judgment, written by Justice Edwin Cameron (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concurring), grapples with the transformative effects of the Constitution and the Rental Housing Act on the relationship between landlords and tenants. The judgment also attempts to empower Rental Housing Tribunals, Tribunals created by the democratic legislature to protect the rental housing market while also addressing the unequal power relations between landlords and tenants.

The minority judgment, written by acting judge Ray Zondo, who has reportedly been earmarked for appointment to the Constitutional Court (Mogoeng CJ and Jafta J concurring), displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants. The minority judgment, relying on what seems to me to be misguided technical arguments, would have upheld the freedom of a landlord to cancel a lease, hike rents or have tenants evicted who cannot afford the steep hikes on rentals, regardless of how unfair the landlord might have acted (all because they supposedly failed to plead their case correctly). The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.

The narrow question in this case seemed to turn on the question of when a landlord could legally cancel a lease and evict its tenants. But behind this formal question lurked the larger question of how the constitutional protection against arbitrary eviction (enshrined in section 26(3)), as well as the protections afforded to tenants by the Rental Housing Act, limited the discretion of the landlord to evict tenants or raise rents.

The applicants are tenants in Lowliebenhof, a ten-storey block of flats in Braamfontein, in the inner city of Johannesburg. The flats are their homes, and they live there in terms of various leases. The respondent landlord bought the building, upgraded it, and then wanted to increase the rent. To do so, it cancelled the tenants’ leases, but offered them new tenancies, on identical terms, though at rents of between 100% and 150% higher than the original rents. The tenants resisted and the landlord brought eviction proceedings. The original lease only allowed an annual rent increase of between 10% and 15% and the cancellation of the leases were aimed at circumventing these clauses.

The tenants put forward several arguments about why the landlord was not permitted to cancel the leases to raise the rents, based on the Constitution, contract law and public policy as well as on the interpretation of certain provisions of the Rental Housing Act. In the end the majority argued that it was unnecessary to develop the common law of contract to deal with this case. Instead it relied on the provisions in Rental Housing Act, which state that the landlord may not engage in “unfair practices” in its dealings with tenants. The Supreme Court of Appeal (SCA) had found that this phrase did not apply to a case like the present because an unfair practice contemplated in the relevant section was “incessant and systemic conduct”, not a once off termination of a contract aimed at hiking the rents.

The majority rejected this view and said that the Rental Housing Tribunal should have decided whether there was an unfair practice in this case. It pointed out that the Act provides that an unfair practice ruling “may include a determination regarding the amount of rental payable by a tenant” or may relate to any termination of the lease in respect of rental housing property “on grounds that do not constitute an unfair practice “.

The Act states that when a Tribunal makes a determination about the rent to be charged, it “must be made in a manner that is just and equitable to both tenant and landlord”. In addition, the rent determination must take “due cognisance” of “(a) prevailing economic conditions of supply and demand; (b) the need for a realistic return on investment for investors in rental housing; and (c) incentives, mechanisms, norms and standards and other measures introduced by the Minister in terms of the policy framework on rental housing…”.

The majority thus found that the Act demands that a ground of termination must always be specified in the lease, but even where it is specified, the Act requires that the ground of termination must not constitute an unfair practice. A Tribunal can decide whether such a termination constituted an unfair practice — regardless of what the lease might have stipulated. The effect of these provisions is that contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with them as unfair practices.

It means that unfair practices are not determined by taking into account only the common law legal rights of a tenant or landlord, but by considering also their statutory interests. This makes it even clearer that the statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights to scrutiny for unfairness in the light of both parties’ rights and interests.

Given this expansive interpretation of the Rental Housing Act (an interpretation influenced by the provisions in the Constitution that prohibits arbitrary evictions from housing and guarantees for everyone the right of access to housing), the majority held over final determination of the appeal (which was originally based on the request to have the tenants evicted) to enable the landlord and tenants, if so advised, to bring suitable proceedings before the Tribunal.

If the Tribunal should hold that the termination of the tenants’ leases was an unfair practice, and should the relief it grants include an order setting aside the termination, the eviction order granted against the applicants may have to be set aside. The parties must be granted leave to set the matter down in this Court for finalisation of the appeal on papers supplemented as they think fit.

The minority had no truck with this airy-fairy, bleeding heart, approach to the old fashioned area of contract law, which would have shown some deference to the democratically elected Parliament who passed the Rental Housing Act. Instead the minority would have preferred to rely on traditional contract law principles that would have allowed the landlord to cancel the lease, and to evict the tenants unless they agreed to a 150% hike in their rents. The minority argued that this case was never argued on the basis of the Rental Housing Act (although the SCA interpreted this Act narrowly in making a finding in favour of the landlord) and hence that the majority was wrong now to rely on this progressive piece of legislation to come to the assistance of the tenants.

The minority, seemingly channeling early twentieth Century British attitudes about the distinction between law, on the one hand, and values and morals, on the other, (as if there was an absolute distinction between these), argued that whether the landlord had engaged in unfair practices was not a legal question at all, but rather a value judgment requiring a judge to rely on moral values (not “law”). The Constitutional Court should therefore not have engaged with this issue at all, according to the minority.

Relying on the legal fiction that the parties “freely and voluntarily entered into leases with clauses that allowed either party to terminate them on notice and which did not say that the termination would not be permissible when effected for a certain purpose or when effected with a certain motive”, the minority would not have referred the matter back to the Rental Housing Tribunal (as the majority did).

Zondo AJ argued that:

the applicants may also have insisted on clauses that excluded certain reasons or motives for the termination of their leases. They did not do so and they have not put up any case to suggest that their bargaining position did not allow them to do so. The matter must then be decided upon the basis that, like the two tenants who included the unusual clauses that their leases could only be terminated at their discretion, the applicants, too, could have included a clause to the effect that their leases could not be terminated to enable the landlord to increase rents by amounts higher than those permitted by their leases. They failed to do so.

As Justice Froneman (in a concurring judgment) pointed out, this denial that it was permissible for the Constitutional Court to consider the interpretation of the Rental Housing Act (which might protect the tenants) in this case, was difficult to square with the law and the facts of this case.

Both the High Court and the Supreme Court of Appeal interpreted the Act and came to the conclusion that the respondent’s right to cancel the leases was unaffected by its provisions. The majority found “that interpretation to be wrong. That the interpretation of the Act lies at the heart of this matter, however pleaded, has never been doubted… I thus have considerable difficulty in understanding how this appeal can be determined in this Court without interpreting the Act. Whether the Act applies to leases in general is a matter of law. So is the question whether the cancellation.”

Moreover, justice Froneman also dispensed with the deeply conservative and formalistic argument about the distinction between morals and value judgments on the one hand and legal questions on the other:

It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an “unfair practice” under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone.

The various judgments therefore illustrate a clear distinction between one set of judges who are engaged with the transformative project and with the transformation of legal culture and the interpretation and application of law (all done while displaying suitable respect for the elected branches of government who passed the Rental Housing Act) and another set of judges stuck in a colonial-inspired formalist mindset (with potentially adverse consequences for disempowered tenants) who rejected the notion that constitutional values and the morals underpinning them, have any role to play in the adjudicating process in this case.

For those of us studying court judgments and legal articles produced by a (still largely) conservative academia, this insight will perhaps not come as a surprise. The surprising aspect of the judgement arise from discovering which judges came out on which side of this profoundly important judicial and philosophical divide.

On “bribery” scandals and intelligence services

Mar 12th, 2012

by Pierre De Vos.

38 comments

Around the time when former President Thabo Mbeki fired the director-general of National Intelligence Agency, Billy Masetlha, a visibly angry Mbeki accused some of his intelligence agents of “manufacturing intelligence” and lying to him merely to please him. “The president as head of state and head of government is the principal client of civilian intelligence,” Mbeki fumed. “Now you can imagine what would happen if the president is fed false information”.

Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.

Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.

Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.

Around the same time the Review Commission on Intelligence, chaired by former Deputy Minister Joe Matthews, found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.

In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.

It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.

But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.

These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).

Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?

Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.

If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).

It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.

Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.

And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.

Another blow to the credibility of the JSC?

Mar 9th, 2012

by Pierre De Vos.

99 comments

At first blush it may appear as if South Africa’s judges and senior constitutional lawyers have all been struck by a remarkable bout of humility and lack of ambition – not traits your average lawyer or judge is usually suspected of. Why else would no credible candidate (except Labour Appeals Court judge Ray Zondo) allow him or herself to be nominated for a job on South Africa’s Constitutional Court?

The Judicial Service Commission (JSC) announced yesterday that no one was shortlisted for the vacant position on the Constitutional Court because there were not a sufficient number of suitable candidates to shortlist for this job (despite an extension of the deadline for nomination to the highest court).

Apparently not even Justice Mandisa Maya of the Supreme Court of Appeal (who is currently acting on the Constitutional Court) put her name forward for nomination to the highest court. Neither did any of the other female candidates who might plausible stand a chance of being appointed to the Constitutional Court.

This might seem curious, as currently only two of the eleven serving judges on the Constitutional Court are female. If one were to take seriously the claim by the government and some members of the JSC that they were committed to apply section 174(2) of the Constitution when they considered judges for appointment – a section that states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” – then one would have thought that the JSC would clamour to recommend a number of credible and competent female judges for appointment and that the President would appoint a woman judge to the vacant position.

Section 174(4) prescribes the procedure for the appointment of ordinary judges to the Constitutional Court (that is, Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice):

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.

The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that when there is one vacancy on the Court (as is presently the case), the JSC must select four appointable candidates and must submit this list of four names to the President who can then select one of the four names nominated by the JSC after the requisite consultation with the Chief Justice (and opposition parties). One assumes that the JSC decided that there were not four appointable nominees and the process was thus aborted. The reluctance of suitably qualified women judges or academics to put their names forward during this round could be explained in several ways.

First, it might be that all the strongest women candidates currently believe that the JSC and the President are not serious about gender transformation of the bench. If this were to be so, the question would arise as to why this perception could have taken hold. Some might argue that the appointment of a Chief Justice (whose previous judgments exhibited a rather lenient approach to sexual violence against women) might have helped to create this perception. The perception could also have been fostered by the previous round of appointments when only one of the four candidates appointed to the Constitutional Court was a woman, despite the fact that several strong female candidates were in the running for appointment.

Second, a perception might have been created that the Chief Justice and the majority of members of the JSC had already decided who it wanted to appoint to the Constitutional Court this time around and that any process in which candidates were interviewed would be little more than a sham aimed at providing some credibility to a formal exercise whose outcome was predetermined. (I have no credible information indicating that such a perception had been created or if it had been created, how it might have arisen and who the preferred candidate might be.)

Third, the fact that so few candidates were prepared to put their names forward for appointment to the Constitutional Court may well be based on a lack of trust in the JSC and the process it follows to decide who to nominate for appointment. Given the way in which it has conducted itself in the past, this body is perhaps suffering from a serious lack of credibility. The sycophantic behaviour of some members of the JSC during the interview conducted last year with the only “nominee” for the post of Chief Justice, might have helped to create this distrust in the ability or willingness of members of the JSC to conduct real and helpful interviews with candidates.

Moreover, the persistent failure by almost all JSC members to engage nominees on their judicial philosophy and their attitudes to the substantive legal issues, may have disheartened most credible candidates who may have felt that their intellectual abilities, their progressive judicial philosophy and their compassion will not be noticed because of a lack of substantive probing questioning put to them and, if it were to be noticed, would play no role in the decision on who to nominate or appoint.

Why do JSC members seldom ask a nominee about his or her views about the role of the courts in transforming the common law by applying section 39(2) of the Constitution to interpret and develop the common law in order to bring it in line with the spirit, purport and objects of the Bill of Rights? Such questioning would provide the JSC with telling information about the transformation credentials of the candidate. Why do members of the JSC almost never ask a candidate about his or her views on “reasonableness review” in social and economic rights cases and whether this standard of review was appropriate? Why are candidates almost never asked how they view hate speech and its limits?

Why are candidates not confronted with questions about the nature of our democracy established by our Constitution? It would be helpful to know whether a candidate is a strong supporter of the view that our Constitution requires a form of participatory democracy and that it requires judges to act decisively to protect and advance the rights of citizens to enable them to participate in our democracy. It would also, surely, be helpful, to know whether a candidate slavishly supports a narrow notion of representative democracy and envisages a limited role for courts in safeguarding the democratic rights of citizens.

Surely both the Chief Justice and the other members of the JSC need to do serious introspection about the process through which Constitutional Court judges are nominated and appointed to the Constitutional Court? Surely one can find a way to balance the requirement to appoint an intellectually curious, highly intelligent, technically competent and principled judge on the one hand, with the requirement to appoint a compassionate, progressive judge imbued with the transformative values of the Constitution on the other?

But to do that, one will have to be prepared to appoint judges that are capable and willing to engage in robust intellectual debates with the members of the JSC and incumbent members of the Constitutional Court (after appointment) and will interpret and apply the Constitution with integrity and in a fearless manner. The question inevitably arise whether the JSC is prepared to nominate and the President is prepared to appoint such judges, or whether they would rather appoint an altogether more timid, conservative and intellectually pliant crop of judges.

Thoughts on scapegoating and endemic corruption

Mar 7th, 2012

by Pierre De Vos.

70 comments

I am currently reading Michela Wrong’s brilliant but depressing, It’s Our Turn To Eat, the story of John Githongo, the Kenyan whistle-blower who took on the government of President Mwai Kibaki, whose members were turning out to be just as deeply mired in corruption as the outgoing government of former President Daniel arap Moi. The book shows what happens if the ruling political class of a country becomes enmeshed in endemic corruption and how difficult it is to turn back the tide of corruption once it has engulfed the ruling party and its leaders.

The members of the elite are usually bribed by members of local big business or by foreign businessmen and women, out to make a fast buck at the expense of the poor. The corrupt political elites make obscene amounts of money while the business elites rake in huge profits by providing shoddy products and services (from houses, to building leases, to medical supplies, to computer equipment) at hugely inflated prices – all because they had paid the requisite bribes to the ruling party or the relevant leaders of that party.

The voters (and especially the poorest voters who have no political connections and who rely on the government to provide it with basic services and opportunities to enhance their life chances) end up suffering while their leaders flaunt their money by buying Rolex watches, expensive cars and gaudy three story faux Tuscan Villas that resemble badly made children’s birthday cakes. (In one poignant scene Githongo relates how it took just three months before the newly installed Kibaki was spotted with a brand new Rolex watch, a sure sign that corruption has set in, according to him.)

It becomes almost impossible to stop this tide of corruption because of an absence of truly independent institutions with the requisite power to investigate and prosecute corruption at every level. If corruption goes right to the top, and if those at the top know that they are protected from criminal investigation or prosecution because they control the police, the intelligence services (who can be relied upon to launch smear campaigns against anyone who asks too many questions or can intimidate and blackmail those who wish to fight corruption) then there is no way that corruption will be stopped. When one is safe in the knowledge that loyal lieutenants are in charge of the police, the intelligence services and any other corruption busting unit, then one can “eat” at one’s hearts content.

Of course, all the “eating” leads to discontent from voters, so a governing party, deeply mired in corruption, will then have to find scapegoats to blame for its shoddy performance and for the lack of service delivery brought about by their corrupt “eating” of state resources. One can blame the last remaining members of the former colonial elite who might be quite rich and might easily be painted as the original perpetrators of the injustices still suffered by the impoverished and unconnected citizens (especially if those colonial types have shown no remorse for their involvement in past injustice and no readiness to help build a new society, instead whining and moaning from the side-lines with a metaphoric white bread clutched under each arm).

One may also blame the Constitution or the judges who interpret and apply the Constitution and argue that these untransformed judges and a Constitution imposed by the colonists are to blame for the slow pace of change. One can blame the opposition party who, instead of loyally trying to help solve problems, moan and complain in a most disgracefully disloyal and unpatriotic manner. Or one can try to redirect the anger of voters to unpopular groups in society: gays and lesbians; foreigners from elsewhere on the continent, Jews or Indians.

It is in this context that the abolition of the Scorpions, its replacement by The Hawks and the eventual decision by a majority of judges of the Constitutional Court declaring invalid the creation of The Hawks must be seen. Although the majority judgment is probably not the best argued judgment ever delivered by the Constitutional Court, it does attempt to grapple with the problem of how to fight corruption in a country where loyalty to the ANC might well mute most attempts by crime fighting bosses to engage in a fearless fight against corruption – even if the corruption leads to the highest level.

The Constitutional Court reminded us that only an independent body – one that is viewed as independent and is indeed independent – would stand a chance of fighting corruption.

Thus the majority judgment stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

It therefore came as a surprise to read that the proposed amendments to the South African Police Service Act purporting to give effect to the Glenister case does not remove the power of the politicians over the “new” body. Instead, it seems to grant more power to the Minister of Police (and more worrying, to the Intelligence Services) to Appoint and fire the head of the “new” unit.

In terms of this draft law the Minister appoints the head of the Directorate, who can investigate corruption but “subject to policy guidelines issued by the Minister and approved by Parliament” This means that the politicians will in effect control the kind of cases that the new unit will be able to investigate.

The Minister may suspend and ultimately fire the Director on the basis of relatively objective criteria such as misconduct, ill-health and him no longer being a fit and proper person, but also for a completely vague reason that he or she can no longer fulfil the duties of the office efficiently. Incidentally this section is headed “loss of confidence in the Head of the Directorate” which gives the game away: if the Minister no longer has confidence that the Director will investigate the “right” types of corruption and not the “wrong” types of corruption, he will be done for.

The Intelligence Service is also given powers to grant or withdraw security clearance to anyone working at this “independent” body. If clearance is withdrawn that person will no longer be able tow ork for the independent corruption fighting body. This means that the politician who controls the intelligence services (in our case this will be the President) will be able to make sure that no investigator in this “independent” unit will make too much trouble for those who are too well-connected or too close to the President himself.

The members of the “new” “independent” Directorate also remain members of the South African Police Service with all the duties of a normal Police officer.

After a first look, these proposals do not seem to come near to meeting the requirements for an independent corruption fighting unit as set out by the majority in the Glenister case. Of course, the truth of the matter is that if the corruption goes right to the top and if the intelligence services are in on the “eating” then it will probably make very little difference what “independent” corruption fighting body is created as it will not be able to fight the endemic corruption engulfing the governing party and the state.

The sad fact is that we will know that we are at that point when the scapegoating of the Constitution or other easy targets like foreigners or gays and lesbians by the ruling party reaches such a crescendo that it cannot but be an excuse to hide behind to evade responsibility for its corrupt governance. I leave it up to readers of this Blog to decide for themselves whether we have reached or are about to reach that point in South Africa.

A re-think on the Provinces?

Mar 6th, 2012

by Pierre De Vos.

19 comments

The various ANC discussion documents released by the ANC regarding the so called “second transition” makes for interesting reading. As the dominant party in our democracy, one that styles itself as a movement that represents the hopes and dreams of the nation (rather than as a normal political party) and as the driver of social change, the ANC’s discussion documents grapple with what it sees as the challenge of strengthening the party’s hold on state power, and to transform the state machinery to serve the cause of social change.

To this end, the proposals for changes to the provincial (as well as local) government is of particular interest. The ANC document recognises that at present the provincial and local government does not function as effectively as it should to provide services to the people. It rejects proposal for the abolition of Provinces, something that is in any case not politically feasible because of the vested interests of those forces in the ANC who have access to power (and the financial perks that come with it) at Provincial level and would not want to lose their influence, power and access to tenders.

Instead the document argues that the “problems emanating from the existence of Provinces are not structural but are more functional and to do with powers… Provinces must be strengthened to play a much more supportive role to local government in service delivery. Thus the powers and functions of provincial government must be re-focused and aligned to complement service delivery at local government.” This seems correct, as the Provinces at present fails to fulfil its task because they are neither full-blown policy developers and implementers, nor mere mechanisms for the implementation of national government policies.

Provinces are seen as important in enhancing the system of both representative and participatory democracy in our system of government. However, this does not mean that the Constitution might not have to be changed. To this end the following important proposals are put on the table for discussion:

The ANC government must reform, rationalize and strengthen provinces. This must ensure the following;

That we have fewer provinces which are functional, effective, economically sustainable, integrate communities on non-racial basis and do away with ethnic boundaries.

That the powers and functions of the provincial sphere of government be strengthened to ensure more functionality, economic viability and racial/ethnic integration.

The role of provincial legislatures be refocused, and mechanism to strengthen legislatures be developed.

Consideration of municipal representation in legislatures to strengthen participatory democracy and representation.

The roles and responsibilities of provinces to be legislated so as to remove any uncertainty and disputes. This is especially necessary since the district level of government is to be reviewed.

It is difficult not to read these proposals, with its emphasis on the need for the integration of racial and ethnic communities, as being partly aimed at the Western Cape, where the DA is in power and where Africans do not form a majority of the electorate. The ANC document seems to recognise the potentially controversial nature of any rationalisation of the Provinces – especially if it will involve the Western Cape – and as such the discussion document contains assurances that the “process to reform, rationalise and strengthen provinces” will be “open, democratic and ensure broader consultation and participation by the public”. The document then continues:

The ANC must give serious consideration to constitutional requirements to carry out the above, in case there is a need for fundamental changes to provinces. The envisaged policy changes might require constitutional amendments. The key political parties must be sufficiently consulted and be allowed a space to play a role in shaping the provincial reforms.

These sensitivities may also relate to the fact that any changes to the Constitution to rationalise the Provinces will not be easily achieved. Section 74(3) of the Constitution states that most provisions in the Constitution may be amended by a Bill passed by the National Assembly, with a supporting vote of at least two thirds of its members; and also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment relates to a matter that affects the National Council of Provinces; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter.

More importantly, section 74(8) states that any amendment that relates to a matter that affects the NCOP; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter, but “concerns only a specific province or provinces”, can only be passed by the National Council of Provinces if the amendment “has been approved by the legislature or legislatures of the province or provinces concerned”.

This means that any amendment to the boundaries of the Western Cape Province will have to be approved by the Western Cape legislature, something that seems unlikely as long as the DA controls the Western Cape legislature. If such amendments are indeed envisaged, there are two ways around this problem.

The first would be for the ANC to win the next Provincial election in the Western Cape, something that seems unlikely in the near future. The DA has the power of incumbency that works in its favour and it will use that power (and the resources that it controls because of this) to good effect to ensure its dominance in the Province in the near future. Moreover, the ANC in the Western Cape is internally weak and has not yet recovered from the destructive internal battles which raged during the tenure of former Premier Ebrahim Rasool, leaving the party in a relatively weak position.

The second would be to try and amend section 74(8) of the Constitution itself in order to scrap the provision that would require the support of the Provincial legislature for any changes in Provincial boundaries. As section 74(8) itself does not contain a super entrenchment provision regarding its own amendment and thus does not prohibit an amendment of section 74(8) except with the approval of all the Provincial legislatures, this would be possible as long as the governing party could obtain a two-thirds majority in the National Assembly, something that might be achievable through co-option of smaller parties in the National Assembly (or through achievement of a two-thirds majority in the next national election).

Amending the boundaries of the Western Cape would make a lot of political sense for the ANC. Political scientists who write about one party dominant democracies have argued — often pointing to the loss of electoral dominance by the Indian Congress Party after it started losing elections in various states — that one way in which a dominant party often loses its electoral dominance is when other parties start winning regional elections. When this happens, the smaller parties (in this case it would be the DA) will suddenly gain an independent governance base and access to power and resources at a regional level. Ambitious politicians will then no longer have to join or remain in the dominant party to become part of government while the smaller parties can theoretically demonstrate that it is capable of governing just as well or much better than the dominant party.

The smaller party who wins a regional election will also gain access to state resources at regional level and will suddenly become an attractive partner for the business elite and other role players who would want to gain that party’s favour to get access to tenders and other economic opportunities. This will weaken the absolute dominance of the party that governs nationally and will open up opportunities for further regional gains for smaller parties in other regions (or in our case, Provinces).

Whether the DA is well placed to use its electoral dominance in the Western Cape in this way is an open question. Unless it can transform itself in quite fundamental ways the electorate in other Provinces might not flock to it under any circumstances. But as long as the DA controls the Western Cape, it poses at least a potential threat to the continued national electoral dominance of the ANC, so it would make sense for the ANC to neutralise this threat by changing the boundaries of the Western Cape to rob the DA of its majority.

Such a shameless power play by the ANC (if it were to happen) will, however, not be without its dangers. Where the dominant party acts in ways that robs it of its legitimacy in the eyes of the voters — for example, by demonstrating what appears to be a shameless hunger to cling to power at any cost — this may drive its traditional voters into the arms of the opposition as these voters may value their democracy (and their sense of having a real right to choose their leaders) just as much (or more) than they value their emotional bond with the dominant party. It may also lead to a re-alignment of the political landscape as disillusioned democrats within the dominant party may reject such a naked power grab and may then break from the dominant party.

No wonder the ANC is treading carefully and is suggesting that key political parties (which one assumes would include the DA) should be allowed a space to play its role in the re-shaping of provinces. If it is indeed its intention to rob the DA of its governance role in the Western Cape (something that is not explicitly stated in the discussion document), it may well lose credibility and legitimacy among some of its core voters — especially if it changes section 74(8) of the Constitution.

Another brilliant idea by our political youngsters

Mar 2nd, 2012

by Pierre De Vos.

123 comments

Criticism of members of the judiciary and the supposed “undemocratic” nature of our constitutional system with its supreme Constitution, enforced by an independent and impartial judiciary, is intensifying.

This is not surprising.

In a one-party dominant democracy in which access to state power also potentially provides undeserved access to immense financial wealth, acquired legally or illegally through the tender process or through high-end government jobs (with its accompanying perks), independent institutions (especially powerful independent institutions staffed by people of integrity) can easily be seen as a mortal threat to the acquisitive ambitions of the looting classes.

In order to maintain their political dominance and in order not to lose all legitimacy in the eyes of ordinary citizens, the looting classes need to draw a veil over their venal actions, by uttering platitudes about their abiding concern for the poor (on whose behalf they so enthusiastically sip champagne) and by expressing concerns about the slow pace of transformation and the “undemocratic” nature of those independent institutions that stand between them and the enjoyment of immense wealth and, perhaps as an afterthought, political power.

After all, no one wishes to spend 15 years in jail (or, in a best case scenario, a few years in a prison hospital), so it is imperative that the “right” person heads the National Prosecuting Authority and the “right” person heads the office of the Public Protector in order to immunise the looters from criminal prosecution for corruption. And of course, it can turn into a terrible bother when cheeky judges declare invalid an Act of Parliament or an appointment of the President, especially when these judgements threaten to destroy the carefully crafted legal mechanisms and structures put in place to protect the political leadership and those who are close enough to the leadership to benefit financially from an emerging kleptocratic state.

It is therefore tempting to dismiss all the talk of a review of the powers of the courts and the expressed yearning for a return to a system of parliamentary sovereignty in which Parliament would be able to make any law – no matter how drastic it infringes on the rights of ordinary voters and no matter how much unbridled power it grants to any of the politicians who “serve” in the Executive – as nothing more than the self-serving attempt at grabbing and consolidating unchecked power.

But this would be wrong. Given South Africa’s apartheid history in which the vast majority of citizens were disenfranchised and given the general distrust in legal processes and in members of the judiciary amongst many voters, arguments about the essential undemocratic nature of judicial review may well have some traction amongst ordinary voters who may not realise that the judiciary – for better or for worse – can (at the moment, at least) probably be trusted far more than can the politicians for whom we vote out of a sense of nostalgia for a better time (that might never have been) and out of a fear of a return to white domination and oppression.

So when the Young Communist League issues a statement demanding that judges become accountable to “the people”, one may take it slightly more seriously than one would normally have done. The statement makes for fun reading, so I quote a sizable part of it here:

We have recently called for the transformation of the judiciary as part of our National Lekgotla resolutions and have stated strongly that our judges are not perfect and that since they are human; they are bound to err, to be biased and influenced by various social and political ambiances… [W]e have found it to be our revolutionary duty to highlight that the members of the judiciary must in exercising their duty understand and respect the political authority of the legislature and the executive; as the powers vested in them are mandated and legitimised by members of society through a democratic process enshrined in our constitution.

We have called for a judiciary system that is accountable to the people and that we will campaign for amendments in the Constitution for the judiciary to be subjected to popular and democratic elections. If the judiciary, like the other branches of government serves the public, then the public must determine who should serve in such offices at all levels of the judiciary.

There are judgements that necessitate that the judiciary be transformed as they leave much to taste relating to transformation of our state and society; it cannot be normal that the courts serve as stumbling blocks of transformation and hide under the protection of the media. The judiciary is not immune from public scrutiny and its independence should never be elevated above the other branches
of government which are democratically elected by the people and are accountable to the people.

Unfortunately the young comrades did not provide any examples of specific judgments of, say, the Constitutional Court, which might have left “much to taste” and which might have acted as a stumbling block to transformation (however defined). Perhaps it has in mind the Mazibuko judgment (which I had previously criticised) where the Constitutional Court endorsed the “pay-as-you-go” water policies of the City of Johannesburg – despite the fact that section 27(1)(b) of the Constitution guarantees for everyone the right of access to water.

But that policy was implemented, as I said, by the democratically elected City Council of Johannesburg (run by the ANC, who is in alliance with the Communist Party) in line with the water policies of the democratically elected national government (a government in which Communist Party serves and whose perks – including long stays in the Mount Nelson and revolutionary free travel to Cuba – its leader seems to enjoy rather a lot). It is therefore unclear how the election of judges would make such judgments more “transformed”. The case nicely illustrates that the problem is not the judges at all, but rather the neo-liberal policies of the very government in which the Communists continue to serve and continue to benefit from.

The problem is that the voters have actually elected this government who has implemented these anti-transformation policies. One can never trust the bloody voters to do the right thing, ne? What is needed, so it seems, is to take a leaf out of the book of Berthold Brecht, and demand that the electorate be replaced. In his poem, The Solution, Brecht mocked an unnamed Communist regime’s pretensions to being democratic in the following manner: “After the uprising of the 17th June/ The Secretary of the Writers Union/ Had leaflets distributed in the Stalinallee/ Stating that the people/ Had forfeited the confidence of the government/ And could win it back only/ By redoubled efforts./ Would it not be easier/ In that case for the government/ To dissolve the people/ And elect another?”

Perhaps the young comrades also did not realise that in a constitutional state (in which the judiciary is required to interpret and enforce the Constitution and thus to check the power of the other branches of government to ensure that those branches do not abuse their power or infringe on the rights of citizens), elected judges would be superfluous. Why have another elected branch of government if that branch is going to do no more than confirm the policies (like the neo-liberal policies around the pay-as-you-go supply of water) devised by the other elected branches of the state.

But, to be fair, at first glance I did not realise how brilliant this plan might turn out to be. As the young comrades pointed out, the problem with judges is that “they are bound to err, to be biased and influenced by various social and political ambiances”.

Goodness, I for one would not want to have any case about the constitutionality of an act by the President heard by judges influenced by various social and political “ambiances”. That is why the election of judges might turn out to be a brilliant idea. After all, at present the other branches of government are staffed by elected officials and we all know that they never err, that they are never biased and that they would never think of being influenced by social or political “ambiences”. No one who has ever attended a debate in the National Assembly would be able to deny that these elected representatives are always impeccable objective and diligent and that their decisions are always correct and never influenced by the wrong kind of “ambiences”.

Who would not want to take their chances in court with an elected judge – as long as that elected judge demonstrates the high degree of objectivity, and the unfailing ability always to make the correct decision, for which our members of Parliament are so well known (give or take a hundred or so Travelgate crooks).

I only have one question: how are we going to protect these elected judges from exposure to social and political “ambiances”? Oh, of course, we only need to lock them up where they can be kept safe from the corrupting influences of the Sowetan and the Mail & Guardian and ETV News to keep them safe from such dangerous influences. Then we can wheel them out whenever a show trial, I mean a constitutional decision, demands it. That will leave plenty of time for the well-connected to loot the state and to spend their money on worthwhile projects – like champagne drinking appreciation classes, visits to drug mule girlfriends in foreign prisons and attending revolutionary parties organised by Kenny Kunene or the intellectual heirs of Brett Kebble.

PS: Apologies for the frivolous nature of this post. I just could not resist it.

Mixed signals on the review of our courts

Feb 29th, 2012

by Pierre De Vos.

105 comments

The government yesterday sent mixed signals about its previously announced intention to “review” the decisions of the Constitutional Court when it released a “discussion document” which (laudably) affirmed its respect for the independence of the judiciary and the notion of the separation of powers, but (worryingly) seemed to question the wisdom of retaining a distinctly adversarial system of judicial review.

This antagonism towards an adversarial kind of judicial review seems to be focused primarily on cases where the courts were not enforcing social and economic rights and where the judicial review of government action would signal a failure on the part of the judiciary to “co-operate” with the other arms of government in pursuit of (unnamed) constitutional values or goals.

Speaking at a media briefing yesterday, Minister of Justice Jeff Radebe announced the release of a discussion document on the transformation of the judicial system and the role of the judiciary in a developmental state (Pdf document) to frame a “national dialogue” on this programme of “further transformation”. These documents are conceptually incoherent and its authors seem to be confused, as it tries to marry a consensual model of separation of powers with a model that retains (some form of) judicial review for an independent judiciary. One cannot have both a consensual model of separation of powers and an independent judiciary that acts as a true check on the exercise of power by the other branches of government. Suggesting that one can, is at best misinformed and at worst misleading.

This conceptual confusion probably flows from the fact that the government of the day is retreating slightly from its position taken in November last year about the need for a serious review of Constitutional Court decisions. This retreat might have been caused by the public outcry about the perceived intention of the government to interfere with the powers of the courts to review and set aside acts by the other branches of government.

It might also be animated by the sinking realisation that both the proposed review of the Constitutional Court and any possible amendments to its powers will be impossible to implement. After all, who will actually be able to peruse all the documents before the Constitutional Court in every single case ever heard by that court to make a sensible assessment of its performance? And in the absence of such a wide ranging perusal of all relevant documents, any review of the Court will be nonsensical and meaningless as it will not tell us anything about whether the court fulfilled its mandate (or whether it was, for example, hampered in its task by the tardiness of the lawyers who appeared before it or the dismal quality of the papers before it).

The discussion document talks about a need for “further transformation of the judicial system”, but fails to indicate what such further transformation would be aimed at or how it might look. The review clearly does not relate to the current package of constitutional amendments and laws before Parliament aimed at streamlining the courts and enhancing the powers of the Chief Justice. This is because the Minister stated that the current reforms will be finalised before the review is actually concluded. It is therefore unclear what “further transformation” (over and above the current package of amendments and Bills) is envisaged by the government. However, answering questions at the media briefing yesterday Minister Radebe refused to rule out further amendments to the Constitution, suggesting that the government is keeping its options open and that the outcome of this review will depend on which faction in the cabinet gets the upper hand.

In the discussion document and in the speech delivered by the Minister at the media briefing, the government re-affirmed the longstanding commitment of the ANC towards the respect for human rights. The Minister also stated that the envisaged further transformation of the judiciary is underpinned by the separation of powers and an independent judiciary.

Arguing that the values contained in the Constitution – including that of an independent judiciary and the rule of law (but significantly not including the supremacy of the Constitution and judicial review) – are also the values that the ANC has consistently stood and fought for, the Minister stated that the ANC-led government would defend these values at all cost. The Minister recognised that the judiciary had an important role to play in transforming the state and society and in safeguarding and protecting the Constitution and its values through its “constitutionally entrenched judicial authority”.

However, it is not as clear from the Minister’s speech as it should be that the ANC-led government’s continued commitment to the separation of powers and an independent judiciary includes a continued commitment to the principle of the supremacy of the Constitution and the powers of the courts to review and declare invalid not only those provisions of legislation which are in conflict with the Constitution, but also those actions by the executive which infringe on human rights, are not authorised by law or fail to comply with the requirements of rationality and non-arbitrariness which are inherent in a system based on respect for the Rule of Law.

In fact, it is clear that the government is at best uneasy with the notion of an independent Constitutional Court that acts as a vigorous but necessary check on the other branches of government. It would prefer a court that works with government to achieve a common goal – rather than a court that vigorously and in an “activist” manner checks the powers of the other two branches of government and embarrasses the legislature and especially the executive by sometimes declaring some of their actions unconstitutional and invalid.

Judges, suggested Minister Radebe, must exercise their power of judicial review “with great circumspection”. The three branches of the state, claimed Minister Radebe, “are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa”. Whether this would mean that one branch – the judiciary – would retain the necessary power to trump the other branches when those branches failed to act in compliance with the Constitution or ordinary law (and hence would retain the power to declare invalid unconstitutional laws and unlawful and unconstitutional acts by the President and other members of the executive), is not as clear from this statement as it should have been.

To be fair, the discussion document affirms that the modern concept of constitutionalism rests on two main pillars:

First, the existence of certain limitations imposed on the state, particularly in its relations with citizens, based on certain clearly defined sets of core values. Secondly, the existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable. In this broad sense, constitutionalism has a certain core, irreducible and possible minimum content of values with a well-defined process and procedural mechanisms to hold government accountable.

As the discussion further notes, there are some debate about the degree to which judges should be empowered to “interfere” with the decisions of the other branches of government:

Striking a balance between policy and law becomes necessary in the current times where courts are increasingly placed in a situation where they have to pronounce on matters of public policy. The interface between the courts’ power of judicial review and the policy terrain that is the purview of the Executive and the Legislature becomes even more delicate in the South African situation where the Constitution enshrines a justiciable Bill of Rights. It is in this context, in particular in the interpretation of the socioeconomic rights in the Bill of Rights, that judicial power should, by necessity, be vested in a mechanism independent of the legislative and executive powers of the government, with adequate guarantees to insulate it from political and other influences.

The government seems to have realised that – as a matter of practical politics and constitutional design – it will not be possible at present to address its unhappiness with the courts who strike this balance differently than the government would have wanted them to, as the government will not be able to reduce the powers of the courts to review and set aside unconstitutional or other unlawful acts by the legislature and the executive.

Instead, there are passages in the document which suggest that the government is hoping that it will be able to water down the independence of the judiciary by creating mechanisms that will help to break down the strict separation between the judiciary on the one hand and the other two branches of government on the other. The conceptual incoherence comes to the fore in these passages which, quite frankly, I find rather frightening. This is because the passages suggests a fundamental lack of understanding and/or respect for the separation of powers and the system of checks and balances in a constitutional democracy. The document thus makes the following extraordinary claim:

The importance of the legislative, executive and judicial branches of the state to cooperate and act interdependently in exercising their distinctive constitutional obligations for the common good of the country cannot be over-emphasised. Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in unison, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state.

Of course, if the three branches were to act in complete unison as an integrated singular unit “for the common good” (a common good defined by those politicians who happen to be in power), it would be difficult to see how one branch of that government would consistently declare invalid the acts of the other branches of the government with which it works in unison. At best the branches will debate the constitutional issues at stake beforehand and the two political branches will alter course to ensure compliance with the Constitution. At worst the two political branches will be able to prevail politically on the judiciary to re-interpret the provisions of the Constitution to give the legislature and executive more leeway to do as they please.

This vision of the three branches all working as an integrated whole towards a common goal (defined by the political party in government) therefore seems to be at odds with a modern notion of a separation of powers in a constitutional state in which the courts retain the power vigorously to check the power of the other two branches of government. The document quotes from a chapter in a Canadian Law Commission Report entitled “Interdependence not independence: Institutional and administrative dimensions of judicial independence”, written by Richard Simeon to support its view. Simeon argues for the need for interdependence and the collegiality of effort for the effective coordination and consolidation of programmes of the state towards a common vision. With reference to the American Constitution (but not in line with the South African jurisprudence) Simeon makes the claim that no clear lines can be drawn between the branches of government:

The doctrine of separation of powers is often invoked to justify the institutional independence of the Judiciary. But sometimes forgotten is the other core of the principle of the US Constitution, checks and balances. The American constitutional design does not envision the three branches as existing in splendid isolation from each other. Rather, tyranny is avoided by having each branch check and balance each other – in other words to be interdependent. The relationship among them is indeed ‘indelibly political’. A blend, as a US judge puts it, of ‘separateness, but interdependence, autonomy, but reciprocity’. At any time there is a dialogue, or negotiation with the other branches about… budget, jurisdiction, size, procedures, and administration.

What the document fails to say is that the chapter from which it quotes was written by a political scientists (and not a judge or a lawyer) and that the author introduced his remarks by saying that he was talking as someone concerned with public administration, a person who believed that the constitution was not of much help in any discussion about the relationship between the branches of government. It also does not mention that this view flies in the face of the view taken by the Canadian Supreme Court (which is indeed staffed by real judges, not political scientists) in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) judgement, a case in which that court made the following statement directly at odds with the views expressed by the discussion document:

under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. … The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration….

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

In the light of the above the proposal in the document regarding the closer co-operation between branches and the need for the branches to engage with one another in order to co-ordinate its activities so that it can operate as a single unit, is deeply troubling. The following proposal is therefore a non-starter and any judge – including the Chief Justice – who values judicial independence should reject it out of hand. The document namely proposes that one aim of any review would be to facilitate:

the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

Of course these proposals are not only conceptually incoherent, and in conflict with the understanding given to the separation of powers by judges and lawyers in other modern democracies, they are also doubly problematic in a country like South Africa with a one party dominant democracy in which the legislature and the executive (as well as the institution tasked with appointing judges) are dominated by one political party and where there is little chance that another party will take control of these branches of government or of the JSC in the medium to long term. In a one party dominant democracy, a proposal for the creation of mechanisms to allow for “debates” between the three branches of government, is a proposal to infuse party political concerns into the relationship between the three branches of government.

While the decisions of judges cannot be divorced from politics and while many judicial decisions will have political consequences, the infusion of party politics in the relationship between the legislature and executive on the one hand and the judiciary on the other will render a fatal blow to the principles of respect for the separation of powers and the independence of the judiciary as it will lead to an inevitable exertion of political pressure on the judiciary – as the Canadian Supreme Court warned so clearly.

The question that arises from this discussion document is the following: will the leadership of the judiciary go along with the proposals to infuse party politics into the relationship between the three branches of government or will they resist and fight for their independence and for their constitutionally conferred power to check the other two branches of government?

Why so little trust in the judiciary?

Feb 28th, 2012

by Pierre De Vos.

48 comments

In 2006, several years after the disastrous invasion of Iraq by the US military, a survey found that almost 50% of Americans believed that Iraq had weapons of mass destruction when the U.S. invaded that country. This belief was false as no weapons of mass destruction were ever found. In the same year Rick Santorum, who is running neck and neck with Mitt Romney in the nomination for the Republican Party’s Presidential candidate, also claimed that the US had found weapons of mass destruction in Iraq after its invasion of that country.

A poll of South Carolina voters conducted by Winthrop University last year showed that only 24 percent of Republicans and Republican-leaning independents in that state believed President Obama was “definitely” born in the United States. (Obama was born in Hawaii which became part of the US about 60 years ago.) Only one in three of those same voters correctly identified Obama’s religion as Christian. Nearly the same proportion, 29.5 percent, believed that Obama is “Muslim.”

It should therefore come as no surprise that South African’s views on the impartiality of the judiciary and its transformation are, at best, mixed. Like its US counterparts, large numbers of South African voters seem to be ignorant and superstitious. The survey, conducted by TNS, found that only 31% of respondents in metro areas of South Africa believed that the judiciary is impartial and unbiased while 31% felt exactly the opposite. A very large number of respondents – 38% of them, in fact – indicated that they did not know whether the judiciary was impartial and independent, suggesting a large amount of ignorance or at least uncertainty amongst South Africans about the judiciary.

It is perhaps also not surprising that 38% of respondents agreed with the statement that “judges were biased towards the government”, while only 27% disagreed. The “don’t know” response was again very high at 36%. Given the relentless attacks on the judiciary by some members of the ruling party (and, it must be said, given attacks by Helen Zille on the credibility of some judges) and given the fact that the government often loses cases before the courts because of criminally bad legal advice or even worse legal representation, and given the electoral dominance of the ANC, I am surprised that the number of people who believe the courts are biased against the government is not higher.

People who do not follow the finer technical legal points of judgments and never read court judgments – depending on the SABC or on The Voice for its information about the judiciary instead – would be forgiven for equating the many legal defeats of the ANC-led government (or the DA-led Provincial government in the Western Cape) with “bias” on the part of the judiciary. In the absence of reasoned analysis about why a law was declared invalid or why an act by the President, Premiers or cabinet ministers were declared invalid, and without a deep appreciation of the principle of constitutional supremacy, a ruling against any ANC or DA politician or ANC or DA-dominated body could easily be confused with “bias” on the part of judges.

I find it surprising that only 38% of respondents indicated that they believed the judiciary was biased. This means that many supporters of both the ANC and the DA who might be upset that “their” government has lost yet another case nevertheless believe that the judiciary is impartial and independent.

Unfortunately the survey did not distinguish between the Constitutional Court, High Courts and magistrates’ courts. Previous surveys were interesting in this regard as it indicated a much higher level of trust in the Constitutional Court – especially amongst black South Africans – than in other courts in South Africa. It is therefore unclear whether attacks on the Constitutional Court by members of President Zuma’s inner circle and by supporters of Judge President John Hlophe as well as the ugly spat about the appointment of a new seemingly under-qualified Chief Justice have not taken a toll on the credibility of the Constitutional Court.

I would guess that these attacks and controversies might well have taken its toll on the image of our highest court. This is because ordinary members of the public do not study the many pro-poor and pro-transformation judgments of the Constitutional Court and might be unaware of the fact that the Constitutional Court often rules against the powerful and in favour of the socially and economically marginalised. It also does not help that the SABC and other news media do not always report in sufficient depth about these rulings.

For example, a few months ago in the Blue Rout Trading case the Constitutional Court ruled in favour of inner-city residents of Johannesburg who were going to be left homeless after eviction by a private company. This made the City Council of Johannesburg very unhappy but was an unashamed pro-poor and pro-transformation judgment, suggesting that the anti-transformation impulses in this case emanated from the ANC-led Municipality and not from the Constitutional Court.

Interestingly, the issue of transformation yielded a 42% “don’t know” response with 34% of metro adults feeling that there has not been enough transformation in the judiciary and 24% feeling that there has. The question is of course what the respondents understood with the concept of transformation. Did they understand the term to mean a change in the racial (and – as an afterthought – the gender) composition of the judiciary or did they understand the term to mean the appointment of judges infused with progressive values enshrined in the Constitution?

If respondents understood transformation in its first meaning, then their perception was clearly mistaken. All leadership positions in the judiciary are now filled by black judges and only about 40% of judges remain white. Of course, in High Courts and on the Supreme Court of Appeal there are many judges (black and white, male and female) who are deeply conservative, pro-big business and anti-gender equality, so if one has a broader understanding of transformation the respondents to the survey who felt that there was insufficient transformation on the bench might well have a point.

Despite these explanations, it must be worrying that so many South Africans either have no opinion or believe that judges are not impartial and independent. This suggests that any attempts by politicians to interfere with the powers of the judiciary or to interfere with its work will be less unpopular than it should be in a functioning constitutional democracy. Judges have no army or police force and neither do they have the power of the purse. Judges are also not elected and do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

But without support from the broader public for an independent and impartial judiciary that is free from interference by the other branches of government or from big business interests (like the Oasis company), it is not clear that the judiciary in its present form will survive an onslaught by the tenderpreneurs and their political backers who see the judiciary as a threat to their kleptocratic interests. Both members of the judiciary (with the Chief Justice in the lead) and members of the media therefore need to reflect on how they can better inform the public about the way in which the judiciary operates and how it protects the rights and interests of ordinary citizens – including the social and economically marginalised members of society.

A secret arms deal whitewash?

Feb 22nd, 2012

by Pierre De Vos.

22 comments

President Jacob Zuma’s announcement that he would institute a Commission of Inquiry into possible arms deal corruption, was widely lauded. Finally, most commentators said, there was a real chance that a full Judicial Commission of Inquiry would get to the bottom of the arms deal scandal. The Commission would finally allow South Africans to get to know the extent of the corruption in the arms deal as well as the names of those who profited illegally from this deal.

However, the recent promulgation (in terms of the apartheid-era Commissions Act of 1947) of the regulations that will regulate this Inquiry suggests that the Presidency is anxious to control the information submitted to the Commission and to prevent the process from leading to the revelation of any embarrassing or shocking details that might turn out to be damaging to him personally or to those he might wish to protect (whether they have “donated” money to his cause in the past or not).

In fact, a quick perusal of the Commission’s regulations leaves one with the uneasy feeling that the aim of instituting the Commission of Inquiry might well all along have been to help with the suppression of any possible further damaging revelations about the arms deal. By drawing critics of the arms deal into the Commission process, these critics might well be forced to stop revealing any damaging information about arms deal corruption to the wider public.

Thus Regulation 10 states that “whenever the Commission is satisfied … that the Commission’s inquiry may adversely affect any existing, instituted or pending legal proceedings or any inquiry instituted in terms of any law, evidence which is relevant to such legal proceedings or inquiry shall be dealt with by the Commission in such a manner as not to adversely affect such legal proceedings or inquiry”.

If this regulation is strictly interpreted by the chairperson of the Commission (and not in accordance with the principles of openness, accountability and transparency contained in the founding provisions of the Constitution), the Commission may well order that all evidence about arms deal corruption which may relate to any existing or even pending criminal investigation be kept secret. This would mean that any documents before the Commission that may or may not be used in future arms deal corruption cases may suddenly become secret documents which may not be revealed by anyone.

Moreover, section 12 of the regulations declares it to be a criminal offence for any person to reveal any ”information which may have come to his or her knowledge in connection with the inquiry” (including any records in possession of the Commission, including notes, record or transcription of the proceedings) and also prohibits a person from leaking any such documents to anyone. This means that leaks would possible lead to criminal conviction for anyone found guilty of leaking documents or other information relating to the Commission’s work.

Section 14 and 15 drives home the message that the Commission would have broad powers to keep almost any aspect of the Commission’s work secret. It criminalises the following acts by both whistle blowers and by members of the media:

14. No person shall without the written permission of the Chairperson: (a) disseminate any document submitted to the Commission by any person in connection with the inquiry or publish the contents or any portion of the contents of such document; or (b) peruse any document, including any statement, which is destined to be submitted to the Chairperson or intercept such document while it is being taken or forwarded to the Chairperson.

15. No person shall, except in so far as shall be necessary in the execution of the terms of reference of the Commission, publish or furnish any other person with the report or any interim report of the Commission or a copy or a part thereof or information regarding the consideration of evidence by the Commission, unless the President has authorised the publication.

These provisions are clearly over-broad and are almost certainly unconstitutional. It would potentially prohibit anyone who submits documents to the Commission from sharing these documents with the media. If, say, Terry Crawford-Brown or Andrew Feinstein prepares a document and submits it to the Commission it would become a criminal offence for them to show this document to anyone — including to members of the media — unless given permission to do so. And if the media receives any information about the “consideration of evidence” by the Commission and publishes a report about this, the reporter and editor will be committing a criminal offence.

Interestingly, these provisions were cut and pasted almost word for word from the regulations which were promulgated to regulate the work of the Donen Commission of Inquiry into the food for oil scandal. That report was completed in September 2006 but was never released until last year, after the Cape Argus and Independent Newspapers challenged President Jacob Zuma in court to do so. Presumably the President released that report because his lawyers informed him that in terms of the Protection of Access to Information Act (PAIA) he would sooner or later be required to do so.

It is not clear to what extent the Commission would legally be able to refuse anyone access to the documents before it in terms of these regulations. After all, in as far as these regulations clash with the provisions of the Promotion of Access of Information Act (PAIA), the regulations quoted above will be of no force and effect. PAIA would clearly apply to the arms deal Commission as the Commission is a public body exercising a public function in terms of the Commissions Act. Section 5 of PAIA states that “this Act applies to the exclusion of any provision of other legislation that… prohibits or restricts the disclosure of a record of a public body or private body”.

However, in the chairperson of the Commission has a special love for secrecy and wishes to do his or her work in the dark, far away from the prying eyes of the public who might be shocked by the allegations of fraud and corruption involving high placed ANC leaders and other politically connected businessmen and women, he might well rely on several provisions in Chapter 4 of PAIA, read with the Commission’s regulations, to do so.

Most pertinently, section 41 of PAIA states that documents could be kept secret if it could reasonably be expected to cause prejudice to:(i) the defence of the Republic: (ii) the security of the Republic; or (iii) the international relations of the Republic. It may also be opt secret if it would reveal information: (i) supplied in confidence by or on behalf of another state or an international organisation; (ii) supplied by or on behalf of the Republic to another state or an international organisation in terms of an arrangement or international agreement.

Such documents would include any documents relating to military tactics or strategy or military exercises or operations undertaken in preparation of hostilities or in connection with the detection, prevention, suppression or curtailment of subversive or hostile activities; relating to the quantity, characteristics, capabilities, vulnerabilities or deployment of: (i) weapons or any other equipment used for the detection, prevention, suppression or curtailment of subversive or hostile activities; or (ii) anything being designed, developed, produced or considered for use as weapons or such other equipment. Records may also be refused on grounds of so called national security concerns.

Whether the arms deal will be a whitewash or whether it will become a credible, legitimate, open and transparent process in which a serious effort will be made to come to grips with the arms deal scandal without trying to hide anything from the public, will depend largely on the Chairperson of the Commission. However, if the Chairperson of the Commission fails to fulfil his task in conformity with the constitutional values or in a slavish executive-minded manner, one would be well advised not to call him out on this.

You see, section 13 of the arms deal Commission of Inquiry Regulations deems it a criminal offence for anyone to “insult, disparage or belittle the Chairperson or any member of the Commission or prejudice the inquiry or proceedings or findings of the Commission”. Dear readers, it might well be that the Chairperson of this Commission will fulfil this serious and important task diligently and in an open and transparent manner — as required by the Constitution and the law. If that is the case, I will cheer him on. If not, well, maybe some readers will volunteer to contribute to my legal fees if I am then criminally charged for disparaging or belittling the Chairperson of this Inquiry.

ANC

There was no coup to oust Mbeki

On “bribery” scandals and intelligence services

Another blow to the credibility of the JSC?

Thoughts on scapegoating and endemic corruption

A re-think on the Provinces?

Another brilliant idea by our political youngsters

Mixed signals on the review of our courts

Why so little trust in the judiciary?

A secret arms deal whitewash?

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