South Africa -- Constitutional Democracy under attack by ANC leaders

In a previous blog post "Dubula ibhunu --- (Kill the Boer song) A Nation in Trouble" I had taken the stance that South Africa was in serious trouble, as it was apparent that leadership had little understanding of the imperatives of a constitutional democracy and that the President continues to be very badly advised. 

That I was not wrong is now beyond question in terms of the following (per Pretoria News 28 Sep 2011).

ANC CHIEF Whip Mathole Motshekga fired a shot across the Constitutional Court’s bow warning the highest court in the land to stay out of the fight over the controversial Protection of Information Bill.

Speaking to Jeremy Maggs on the E.News channel Motshekga went on to say that the ANC would not countenance the court striking down the Bill once passed by the ANC in Parliament.

“If people are defeated in a political arena, they want to substitute the will of the people with the will of the judges. Then we must redefine our democracy and how we want to manage our country” he responded. "It is not for judges to decide for Parliament, because that would be a gross violation" he said.

It should be remembered that the President had previously said at a conference of judges that - “the powers of the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.

"Zuma is criticising the Constitutional Court, saying (as the old National Party did in 1953) that it should not be above the sovereignty of Parliament; members of the South African Communist Party seemingly agree, contending that the constitution itself is outdated and should be changed, while Deputy President Kgalema Motlanthe declares it is sacred and the very bedrock of our democracy.

These are not mere disagreements on policy, and there are plenty of those. They are fundamental differences over the very nature of the state — as fundamental as it is possible to get in politics. What Zuma and the South African Communist Party are saying amounts to a repudiation of the covenant entered into by all parties at the Convention for a Democratic SA and consecrated by Nelson Mandela in his historic inaugural address in 1994.

A covenant to declare the new S A a constitutional democracy, in which the constitution is the supreme law to which all citizens, including MPs, Cabinet ministers and the president himself, are subject". [per Alastair Sparkd @ http://www.businessday.co.za/articles/Content.aspx?id=161501]

To date, the media has taken the stance that this constitutional democracy "may" be under threat. No one should be confused any longer; it is not under threat; it is under attack; robust, aggressive attack; and the ANC Chief Whip has served notice that the Constitution will be scrapped to remove the doctrine of separation of powers.

As a former judge, I am able to say with considerable confidence that the Protection Of information Bill, in its current state, has very little chance of surviving a court challenge. The Constitution requires the very opposite of what the Bill is attempting. It insists that information be made available, not restricted.

So we are being given due notice that when the courts do their job and strike down the bill, wholly or in part, the ANC will not accept this and will scrap the constitution to rid it of the separation of powers.

In a nutshell, what the Chief Whip is saying is that the courts are not there to countermand the will of the majority party - - even if the majority is wrong. A good example is the issue of the death penalty. 84% of South Africans support the death penalty, but the courts ruled against this. The decision of the courts has been accepted even though it is completely against the will of most people, let alone the ANC!

So, at a stroke, we can see that the ANC wants to have a situation where IT has a prerogative to "pick and choose" which court decisions it will accept -- AND also an unfettered right to decide what is the law, what is the rule of law, what are human rights .. NOT the courts!

We should all understand that the very essence of a constitutional democracy, and the doctrine of separation powers, is to ensure that all human beings, even the very lowliest, are protected  -- protected even against the will of the majority if necessary. It is often necessary. History has shown that the majority is often wrong. Just ask Socrates and Aristotle, persecuted for their brilliant minds of disagreement with the majority.

The passion with which the ANC wants to be able to conceal information is extremely worrisome considering that nothing has happened to date that indicates a need for concealment.

What we need to understand very clearly is that, although the Bill has been reported as "anti media", it is actually about shutting up and gagging ordinary citizens. The media are making a fuss simply because they deal in selling information. But this is about dumping our right to free speech in very large measure. So you stand to be imprisoned for that sms, tweet, FB post or any statement made in whatever form - if some faceless bureaucrat has classified the info as secret, whether you know of such classification or not.

So, South Africans. Take Note!. This is called the tyranny of might is right!

Judicial Independence

On 2 November 2011, this what President Jacob Zuma included in his speech at the farewell dinner for the outgoing Chief Justice:

 “Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government. I know that the last time we raised this point, we generated a heated debate within the legal fraternity, some of whom did not see that it was actually an affirmation of the doctrine of the separation of powers.

This challenge is perhaps articulated clearly by Justice VR Krishna Lyer of India who observed that: "Legality is within the courts' province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule."

In our view, the principle of separation of powers means that we should discourage the encroachment of one arm of the State on the terrain of another, and there must be no bias in this regard.

We respect the powers and role conferred by our Constitution on the legislature and the judiciary. At the same time, we expect the same from these very important institutions of our democratic dispensation.

The Executive must be allowed to conduct its administration and policy making work as freely as it possibly can. The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. 

We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. This interferes with the independence of the judiciary.”

This now perhaps the 4th time that the President has felt compelled to lecture the judiciary on the matter of what is known as the "doctrine of separation of powers".

This is highly problematical, for the simple but very good reason that any judge who does not understand this doctrine should not be on the Bench of the Superior Courts. A judge who does not understand this is incompetent. A medical analogy would be that a doctor who does not understand what "intravenous" means would be incompetent. It is that basic. We can accept, beyond doubt, that the President does not believe that the judges are incompetent. So why these repeated admonitions?

Regrettably all the indications are that the Executive does not understand the doctrine as it applies in a constitutional democracy and/or is resolved in rejection. This is the only reasonable inference that one is compelled to draw on the evidence to date. It explains the repeated "warnings" to the judiciary.

These "warnings" will now have the following regrettable knock on effects: -

a)  Judges will undoubtedly interpret the situation correctly, and know that they are under scrutiny on the issue of being either "on side" or "off side" in relation to the Executive.

b)  As judges are human beings, they will experience conscious and/or subconscious pressure to comply with the wishes of the Executive.

c)  This, in turn, will induce conscious or subconscious bias in judicial approach, either "for" or "against" the Executive. 

d)  The recent controversial appointment of new Chief Justice will inevitably be seen as having been driven by a political imperative to have an "onside" judiciary.

e)  For the incumbent, it regrettably impacts negatively on his credibility and the issue of bias will have a subverting effect on his functionality both subjectively and objectively, regardless of how functionally independent he actually is.

f)   Should there be another split decision, like the one in which the Executive’s disbanding of the Scorpions was reversed, perception of a judiciary being split along "pro/against" the Executive lines will receive a huge boost.

g)  If the majority in such split decision turns out to be led by the new Chief Justice, the perception will be that the judiciary is now beholden to the Executive and no longer independent, regardless of whether or not the decision is jurisprudentially sound.

h)  In this way the credibility and stature of the judiciary will be comprehensively subverted and/or destroyed, locally and internationally. 

i)   For judges this will mean loss of stature and prestige. For the country this will also mean loss of stature, credibility and prestige. This will have a serious eroding effect on investor confidence.   

j)   The organically induced disrespect for the courts will have an insidiously aggravating on the climate of anomie that has undoubtedly had this country in its grip for decades now.

Observations:

There can be little doubt that the President continues to be very ill advised. It must be hoped that to-day’s appointment of Michael Hulley, as his legal advisor, will redress this situation. There are three (3) cardinal issues that Michael Hulley needs to make the Executive understand.

 (1) In a constitutional democracy the sacred duty of the judiciary is to jealously guard the letter and spirit of the constitution against all comers, including the Executive.

 (2) The inevitable consequence of this is that the Courts can, and must, overturn the will of the majority, even when passed by Act of Parliament. In any event, history has repeatedly shown that the majority is often wrong, badly wrong. It was the majority who screamed “"crucify Him, crucify Him". Two of the greatest minds in history Socrates and Aristotle were persecuted by the majority for saying that planet Erath was flat and revolved around the Sun. Socrates was put to death Aristotle had to flee.

"A word like ‘tyranny’ is interesting for its inevitable conjuring up of concerns about the tyranny of the majority, a misstep of democracy that judges – in their independence from the political process – are able to correct."       Writer Chris Geidner .   Commentary on the court decision overturning California’s Prop 8  In the Gay & Lesbian News Magazine.

 (3) As much as government may wish to have issues “"politically" resolved, every citizen, even the lowliest, has an absolute right to take a matter to court if he/she thinks, believes, even just imagines that the court’s protection/intervention is needed. The Courts have a very well established procedure for dealing with matters that are improperly brought, including summary rejection on the basis of being frivolous and/or vexatious, and punishing the applicant. That right therefore, does not stand t be questioned.