Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
12 December 2006

Viva term limits, viva!

Although it might not appear so at the moment, I believe section 88(2) of the Constitution is one of the most beautiful and important provisions safeguarding our democracy.

Section 88(2) states:

No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.

During President Thabo Mbeki’s first term as President he governed the ANC – and by implication South Africa – with an iron first. He often ridiculed those he disagreed with him or called them names without any fear that anyone would talk back. He even got the Deputy President to make a statement that he had no ambition to become the next President.

How things have changed.

Only this week the Deputy Minister of Health told a British newspaper that President Mbeki should go for an HIV test and continued:

What has happened in South Africa is sad and tragic… people are confused about treatment… and this has come about because of the confusing messages coming from the very top…. It is absolutely irresponsible to say to people who are desperate, who want to live, ‘Oh, go to your traditional healer if you want’.

And when the President last Friday went on a rant about the “fisher’s of corrupt men”, Cosatu hit right back at him, suggesting that he was a bully and that he was the one dividing the alliance. The statement, in part, says:

[T]he President’s style of engagement leaves much to be desired. He never debates on the strength of his arguments or correctness of the points he is raising. He always seeks to misrepresent people’s genuine concerns in order to ridicule those he disagrees with and question their integrity. He throws the race card even against organisations whose membership is constituted mainly by the very ANC members he is leading.

(See also my post of Friday on the letter from the President)

I would contend that none of this would have happened if President Mbeki was going to be President of the country for a third and a fourth term. Because people now believe that Mbeki cannot serve a third term and cannot play a decisive role in their political careers, they are far more ready to be brave and to speak truth to power.

And because people inside the ANC has stopped fearing the President, those of us on the outside are not so easily cowed into silence for fear of being labelled racist or ultra-leftist. Would Mondli Makhanya have dared to publish the scathing article about Mbeki in the Sunday Times five years ago? I doubt it.

Ironically, the Jacob Zuma saga has helped to give some politicians some backbone. In the end I believe that Jacob Zuma will be seen as the Geoffrey Howe of South Africa. Howe made a scathing speech against Margareth Thatcher’s leadership (to which she said: “Being savaged by Geoffrey Howe is like being savaged by a dead sheep), which opened up the space for a real challenge to her leadership and her eventual downfall.

If it was not for the term limit placed on him, President Mbeki might never have been attacked in this way and we could easily have had more Aids denialism, more ad hominem attacks on those who disagree and more fear of speaking our minds.

I thus think section 88(2) is an absolute non-negotiable section of the Constitution – not because I take a special joy in the President being attacked, but because I take a special joy in democracy, which requires robust debate and criticism even (or, no, especially) of the President.

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