Trump bans Muslims and we claim that this is un-American, that we are not this. I don’t have to talk up “ancient” history to show that we are. I won’t bring up settler colonialism, genocide, and land theft, or harp on slavery, or internment camps for Japanese-Americans. I won’t refer to the Page Act banning those deemed “undesirable,” the Chinese Exclusion Act, the Asiatic Barred Zone Act, or the Emergency Quota Act. I don’t have to mention the hundreds of thousands of Mexicans deported in the nineteen-thirties… I won’t mention any of this, because this happened so long ago. We can always delude ourselves by saying that America was this but now we are better. Let me just say that in 2010 and 2011, state legislatures passed a hundred and sixty-four anti-immigration laws..
Over the past few months President Jacob Zuma and other ANC leaders have complained about the courts interfering in the policy decisions of the executive, arguing that one can distinguish between legal decisions on the one hand (the realm of the judiciary) and policy choices and political decisions on the other hand (the realm of politicians).
This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.
This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.
In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.
But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.
The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.
The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.
The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.
Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.
The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.
Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).
But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.
They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.
This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.
Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.BACK TO TOP