Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
24 May 2010

Why extend the terms of Constitutional Court judges?

A journalist sent me the most curious draft Bill which – if passed – would amend section 176 of the Constitution. At present that section 176, read with the relevant legislative provisions, limits the terms of Constitutional Court judges to a non-renewable term of between 12 and 15 years (up from 7 years in the interim Constitution).

The proposed amendment of section 176 will extend the term for Constitutional Court judges who will be able to serve until they reach the age of 70 – regardless of how long they had already served on the Constitutional Court. If passed, this will mean that Chief Justice Sandile Ngcobo appointed by Jacob Zuma last year – who currently will have to retire in 2012 – would be able to serve as Chief Justice until 2023 (along with judges Cameron and Froneman who would then also have to retire in 2023).

Deputy Chief Justice Dikgang Moseneke, on the other hand, will then have to retire in 2017 – long before the end of the term of the current Chief Justice. The proposals would therefore make it impossible for him ever to become Chief Justice. Newly  appointed Judges Chris Jafta and Bess Nkabinde will then serve until 2029, while Justice Mogoeng Mogoeng, a lay-preacher, will serve until 2030.

The question that comes to this suspicious mind is: why has Minister Jeff Radebe made this proposal now? Did he consult the Chief Justice and the other judges of the Constitutional Court? Why wait with the proposal until after four of the most compassionate and progressive judges have retired from the Constitutional Court and four new judges were appointed by the very guy who has had several run ins with the courts because he took money from a crook and then did favours for that crook?

I for one, smell a rat.

When the Constitution was drafted there were long debates about the term to be served by judges of the Constitutional Court. It was pointed out then that South Africa should avoid the American example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the President who appointed them many years after that President had retired or even died.

Because judges of the South African Constitutional Court have enormous powers and because the exercise of these powers have political ramifications, it was felt that the Constitutional Court judges – unlike High Court and Supreme Court of Appeal judges – should serve a fixed term of no more than 15 years. In this the drafters of our Constitution followed the wise model of the German Constitution and the Constitutions of many other modern democracies.

The reasoning was simple and clear. Judges of the Constitutional Court exercise power that will have strong political ramifications. They are not in effect appointed by the Judicial Services Commission (JSC) in the same manner as the judges of High Courts but are selected by the President from a list prepared by the JSC.  The President also appoints the Chief Justice and Deputy Chief Justice without having to follow the advice of the JSC.

By giving the President a decisive role in the appointment of the judges of our highest court, the Constitution recognises the fact that this court plays a more political role than the other courts. It can declare invalid the actions of the President, has to confirm the unconstitutionality of legislative provisions and, heaven help us ever having to go there, would be able to rule on the validity of an election result.

A relatively regular turnover of judges of the Constitutional Court would therefore ensure that a new President would have some say in the appointment of the Constitutional Court judges as the 12-15 year terms of Constitutional Court judges come to an end and they have to be replaced. This would ensure that the leader of a defeated political party would not be able to exert undue influence on our legal  system by appointing Constitutional Court judges that will serve perhaps far into the future. One would not want judges to serve for 30 or 40 years when that political party whose leader had appointed them had already faded into obscurity or had even disappeared (as the National Party has indeed done).

Imagine these proposals were in place in 1990 and FW de Klerk had appointed 40 year old judges to the Constitutional Court who could then serve until they were 70. That would have meant that the Constitutional Court would have been packed with people appointed by De Klerk and would have been able to serve until 2020 – long after the demise of the National Party. If de Klerk had used his power in a Machiavellian manner to ensure the appointment of judges that were in effect pro-National Party, the Constitutional Court would have been able to thwart much of the ANC’s transformation programme.

Some High Court judges who currently still serve on our courts were appointed before the end of apartheid, but their decisions can always be appealed to the Constitutional Court. Imagine pro-apartheid judges were allowed tos erve on the Constitutional Court for the next 30 years? How undemocratic would that be?

This would have been bad for democracy, bad for the legitimacy of the Courts and bad for the Constitutional project as a whole. It would also have invested the appointment of Constitutional Court judges with so much more significance, as a President would be far more likely to choose a mediocre but reliable party hack for a position on the Court if he or she knew that the appointment would last for 30 or 40 years and might still help to thwart the political programme of a party who defeated the President’s party at the ballot box.

Regardless of how one feels about the judges presently serving on the Constitutional Court – and in my humble opinion there are several brilliant judges serving on that court at the moment, along with a few other judges who one would not be able to  describe as intellectual giants – this proposal seems wrong and dangerous.

It upsets the careful balance devised by the constitutional negotiators which recognised the political role played by the Constitutional Court, but limited the term of the judges serving on this court to ensure that one party in power did not pack the court with its supporters to rule South Africa from the grave – so to speak.

In the absence of cogent and plausible arguments for this amendment, it would not be unwise to suspect that there is some inherently undemocratic about this move and that malicious intent might be behind these proposals. Given the fact that these proposals are brough to you curtesy of the same people who engineered the appointment of that ethically challenged guy called Menzi Simelane as head of the NPA, I am deeply suspicious about the motive behind this proposal. Surely, it will be seen by many people as an attempt by some in the ANC to help entrech their power, if not until Jesus comes then at least for the next 30 years.

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