As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
One would have thought that now that charges have been dropped against the “likable” and “kind” Jacob Zuma who “does not hold grudges”, attacks from the ANC on those members of the judiciary they do not like because these judges actually do their job and uphold the law and the Constitution, would subside.
Sadly Mr Jacob Zuma, who seems to open his mouth only to change feet, in an interview with The Star, is at it again, blasting the conduct of the judiciary and questioning the supremacy of the Constitutional Court as the highest court in the land, saying it “is not God”. As IOL reports:
He also accused Deputy Chief Justice Dikgang Moseneke of declaring war on the ANC, and criticised other judges who, coincidentally, ruled against him in his corruption court appearances. In an interview with The Star in Durban on Wednesday, Zuma said he wanted a review of the status of the Constitutional Court because its judges were capable of committing mistakes. He said the Judicial Service Commission should review the status of the Constitutional Court.
“That’s the impression it creates (that judges can’t make mistakes); that’s why I am saying they are almost close to God. I think it’s important to engage them, to raise these issues; they are issues that need to be looked at,” he said. Zuma, who has appeared before these judges, was asked if this would not be interpreted as bullying the judiciary. He replied: “No, you can’t bully the judges, because if I say engage them, I am not saying I am going to order them around… I say let us discuss logic. They will also raise their matters. What is important is engaging; it is not instructing or bullying.”
“I think I will be very sensitive (to Justice Moseneke’s statement). And I think that is precisely the reason why we always say judges should know what they say… You can’t just stand up and say I don’t care what this ANC (sic), and it is a ruling party. You are just declaring war. Why should you say that when you are a judge,” he said.
So, maybe it’s time to assist the ANC President (with a shower head AND a dark cloud hanging over his head) to understand how a constitutional democracy works. Mr Zuma is after all said to be a good listener (if – like Julius Malema – not a great student), so listen up Mr Zuma.
In a constitutional democracy there is a separation of powers with three branches of government: the legislature, executive and the judiciary. The first two branches should not interfere with the work or the independence of the third branch. Although decisions of the judiciary can be scrutinised, analysed and criticised, judges cannot be “engaged” – as if they are petty party politicians or the odd Judge President or acting head of the prosecuting authority.
It would constitute outrageous interference with the separation of powers if any politicians – even a Teflon President like Mr Zuma – “engaged” judges about their views or decisions. For Mr Zuma even to suggest that this should be done, leaves him not only with a shower head and a dark cloud over his head, but also with a question mark about his commitment to constitutional democracy. Section 165 states as follows:
(2) No person or organ of state may interfere with the functioning of the courts.
(3) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
Mr Zuma’s suggestion of “engagement” with the judiciary is therefore a proposal to breach the Constitution. If he knew what he was saying (and let’s face it, he is not the sharpest tool in the shed so he might not have realised how utterly stupid and dangerous his remarks were) , Mr Zuma is a danger to our democracy and we should really be very, very, very afraid of the “new” ANC who might be even more prepared to abuse state institutions to advance the personal interest of Party Leaders than under Thabo Mbeki.
The JSC is also not empowered to look into this and the suggestion that they should review the powers of the Constitutional Court is so spectacularly uninformed and embarrassing that it is perhaps better to assume that Mr Zuma was joking when he said this. If the ANC does not like governing a country based on the Rule of Law and constitutional democracy, they can of course change the Constitution to take away the power of the Constitutional Court to check conduct and legislation against the Constitution and declare these invalid. But then they must tell the voters that this is their policy so that we can understand the dangers of voting for the ANC.
Judges often differ about the interpretation of the law and the Constitution and higher courts often overturn lower court decisions. It is part of the checks and balances on the judiciary. But the Constitutional Court is the highest court and nobody can overturn its decisions. That is how a constitutional democracy works. If Mr Zuma does not like this and would rather live in a fascist state, he must take the voters into his confidence about this. He must tell the informal settlement dwellers that he believes the courts should have no power to intervene to protect their rights and he should tell HIV positive people that the Constitutional Court should not meddle by vindicating their rights and saving their lives. Let them eat cake or die, sort of.
The statement that Deputy Chief Justice Dikgang Moseneke declared war on the ANC when he said it was not what the delegates decided or the ANC decides that guides his work, but the Constitution, is also in line with a view that the ANC – and not the Constitution – should be supreme. Fact is that what the Deputy Chief Justice said was merely a textbook description of the job of a judge in a constitutional democracy.
When the Constitution Court makes a decision, it has a constitutional obligation to ignore what Mr Zuma, the ANC or even God says and to follow the constitution. This is not a war on Mr Zuma, the ANC or God for that matter, but merely what judges do in a Constitutional democracy. The ANC is the serving party in government, but the constitution – as interpreted by the courts – are more important than the ANC – for the time being at least.
Unless Mr Zuma is going to “clarify” his statement (as he has “clarified” other statements about how good it is to be violent against gay men and lesbians, how the ANC will rule until Jesus comes, and how English South Africans are really not citizens of this country), we would be justified to assume that Mr Zuma (i) does not understand how constitutional democracy works and/0r (ii) does not believe in constitutional democracy.
The Constitutional Court has shown that it cares more about the poor, marginalised and vulnerable than it cares about the ANC and I suspect this is what upsets Mr Zuma. Who cares about the poor in any case. They just become a nuisance and get in the way of those 20 car motor cavalcades and take up resources that could be used to buy Mercedes Benzes and arms.
One thing is certain, even if the ANC abolishes our constitutional democracy, the dark cloud, the shower head and the question mark will remain hovering over Mr Zuma’s head and unfortunately nothing he says or does will ever, ever, change that.
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