Rule of Law: Judicial Accountability is Healthy for Democracy

IOL News

2 days ago

Protest: EFF leader Julius Malema led a march to the Constitutional Court demanding that President Cyril Ramaphosa be held accountable for the Phala Phala scandal. The question regarding the judiciary's independence is not so dissimilar to the former President Thabo Mbeki's reaction to the ANC's parliamentarians' vote to squash the establishment of a Multi-Party Committee to investigate whether President Ramaphosa has a case to answer on the Phala Phala farmgate scandal, says the writer.
Prof. Sipho Seepe
Umkhonto we Sizwe Party (MKP) argues that 'Members of Parliament are required to declare their assets; therefore, the same standards should apply to judges, who wield immense constitutional power and influence. Judges must be held to a higher standard of scrutiny and accountability. South Africa cannot afford to have a judiciary shielded from the same transparency expected of other arms of state.'
The self-appointed guardians of our democracy would have none of it.
The judiciary is a no-go area. After all, conventional wisdom dictates that judges are paragons of virtue. They cannot be compared to corruption-prone politicians and public officials.
Counterposing MKP's call is an argument that says, 'Judges are already subject to the most stringent asset and income declarations of all public office bearers'.
Also, subjecting judges to lifestyle audits would imply suspicion of corruption. If stringent processes for probing judicial integrity are in place, MKP's call should not pose a problem. A case of suspicion has been made.
According to the 2018 Afrobarometer survey, a publication of the Institute for Justice & Reconciliation, 32% of South Africans suspect that judges are involved in corruption. In 2002, the level of mistrust was 15%. Chief Justice Mandisa Maya is on record that there are issues that require urgent attention including 'the report of the 2021 Afrobarometer survey that the public's trust in the judiciary has declined…loss of confidence in the judiciary does not augur well for the rule of law and our democracy'.
She concluded that 'the judiciary itself needs to do an introspection and check if we are to blame for this change of attitude towards the institution.'
Delivering the Nelson Mandela Lecture, former Chief Justice Mogoeng Mogoeng raised a similar concern.
'There is an attempt to capture the judiciary…. any captured member of the judiciary will simply be told or will know in advance, when so and so and so and so are involved, we'd better know your place. Or when certain issues are involved, well, the decision is known in advance'.
Far from being denialists, Mogoeng and Maya have approached the subject with a certain degree of maturity. Theirs is to call for vigilance against attempts to undermine (or shield) the judiciary. All that MKP has done is put the matter up for public debate.
For Joe Soap in the street, the question regarding the judiciary is not so dissimilar to the former President Thabo Mbeki's reaction to the ANC's parliamentarians' vote to squash the establishment of a Multi-Party Committee to investigate whether President Ramaphosa has a case to answer on the Phala Phala farmgate scandal.
Mbeki asked. 'Are we saying that we suspect or know that he (Ramaphosa) has done something impeachable and therefore decided that we must protect our president at all costs by ensuring that no Multi-Party Committee is formed?...... We acted as we did [as if] there was something to hide'.
MKP's call for judges to be subjected to lifestyle audits coincides with President Ramaphosa's initiation of the process for the appointment of the Deputy Chief Justice. The position became vacant following the elevation of Justice Mandisa Maya to lead the apex court.
For his part, President Ramaphosa nominated four judge-presidents. With Mahube Molemela (Supreme Court of Appeal having declined the nomination, the remaining contenders comprise Dunstan Mlambo (Gauteng), Cagney John Musi (Free State), and Lazarus Pule Tlaletsi (Northern Cape).
The Judicial Service Commission, headed by Chief Justice Maya, is expected to pronounce itself on the suitability of the nominees for the position. To be clear, this is a political appointment.
With the recycling of Mlambo after his failed bid for the position of Chief Justice, it is a safe bet that Mlambo will get the position. Hopefully, this time around, President Ramaphosa will not go for a demonstrably weak candidate. This would be a case of history repeating itself.
A knee-jerk response to MKP will not remove the lingering suspicions of bias.
First, far from ubiquitous misconceptions, judges are neither necessarily wise nor omniscient. They are no angels. They are as human and as fallible as all of us. They are prone to self-interest and self-preservation, which may not cohere with the principles of justice.
Second, judges do not exist in a vacuum. They are socio-cultural and political animals. There are many instances where history and politics cloud their judgments. The Constitutional Court's ruling regarding a tussle between the City of Tshwane Metropolitan Municipality and AfriForum on changing street names is a case in point.
In challenging the Tshwane Municipality regarding its decision to change street names to names of struggle icons, AfriForum had, among other things, argued that doing so would violate the constitutional right of the Afrikaner people to enjoy their culture.
The Gauteng High Court had ruled in favour of AfriForum.
A majority judgment by Mogoeng CJ concurred by Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J, and Zondo J, upheld the appeal against the lower court. Justices Cameron and Froneman dissented.
This couldn't be a mere coincidence that all black judges saw things differently from their white colleagues. It is highly possible that socio-political and cultural experiences played a role in arriving at this ruling.
Another instance relates to a case in which a full bench (three judges) of the Gauteng High Court decided to offer a political commentary on a matter involving Eskom. Nailing their political flags to the mast, the three judges contended that the 'new dawn that engulfed the country in 2018 did not miss Eskom Holdings SOC Limited (Eskom). It brought life to Eskom in that in January 2018, Eskom's old and inactive leadership was replaced by new leadership with new life to undo years of maladministration and corruption within the organization.'
It didn't take long before the country was plunged into rolling blackouts. The fall from Ramaphoria to Ramaruin happened at lightning speed.
Lastly, members of the judiciary have not covered themselves in glory.
We need not go further than recall the unseemly spectacle that played itself during the publicly televised interviews for the position of Chief Justice. It was evident that Justice Raymond Zondo was a spectacularly poor performer. Only three commissioners reportedly gave Zondo a thumbs-up against the current Chief Justice Maya's twenty-one votes.
A discerning individual would have declined the appointment.
We must not underplay the extent to which many of our judges are beholden to neo-colonialism. After all, they are part of 'a native elite faithful and [compliant] to the needs of the colonialists. It was largely through educational processes at all levels that these elites were moulded and culturally turned.'
It is not an accident that we have courts that foreground 'colonially borrowed languages; languages that are hardly understood by [their audience], and languages, which even these speakers handle with difficulty and grammatical inadequacies.'
The sooner we demythologize members of the judiciary, the better for us.
* Professor Sipho P. Seepe is an Higher Education & Strategy Consultant.
** The views expressed do not necessarily reflect the views of IOL, Independent Media or The African.