The Menzi Simelane judgment may be the straw that breaks the camel’s back. Relations between the executive — or, at least, certain parts of the government and the ruling party — and the judiciary have been simmering for months. The judgment may well push things over the edge.
The nationalists will fight back no doubt, arguing that the Supreme Court of Appeal has overstepped the line between the branches of government in ruling that President Jacob Zuma’s appointment of Simelane as national director of public prosecutions was irrational and therefore unlawful. In fact, legally, the court has done nothing extraordinary. It simply applied the principle of legality that has been developed in a number of cases since the 1990s, a principle that says that executive action must be taken both lawfully and rationally. Drawing carefully on that jurisprudence and noting its conceptual underpinnings, principally the notion of a “culture of justification” that the late Etienne Mureinik articulated during the transition from apartheid, the court was at pains to explain the relationship between the principle of legality and that of constitutional democracy.
It is the political context, however, that renders the court’s decision so ripe for rebuke from conservative quarters — quarters occupied by people who are apparently determined to hang on to the old-fashioned idea of parliamentary and executive sovereignty so beloved of autocrats. They assert that Simelane is a victim of a “political inquiry”, namely the Ginwala inquiry into the suspension of the former director, Vusi Pikoli.
On SAfm on Monday, the usually clear-minded commentator, Steven Friedman, in his complaint about the court’s “encroachment” into the political sphere, failed to distinguish between truly political appointments — such as the appointments to Cabinet — and those that both have a separate constitutional derivation — such as the head of the National Prosecuting Authority — and by law specific “job requirements” attached to them.
Friedman’s general frustration about what he appears to regard as the unhelpful predominance of lawyers in debates about the integrity of the constitutional dispensation is more understandable. The Constitution cannot be solely the playground of the legal fraternity. We cannot be its protectors. Instead, it must grow deep roots based on popular support and legitimacy.
And we must watch our language. When we apply a legal term of art, such as the “president failed to apply his mind”, we must recognise that many people will interpret this as some kind of insult to a democratically elected head of government. It is not; there is no assertion that the president is of weak mind, or intellectually not up to the task — those are political arguments that others might feel inclined to make — but rather that the process of, in this case, choosing an national director of public prosecutions was lacking because significant and relevant evidence about the probity, integrity and political independence of the candidate was not properly or adequately considered.
When such evidence, much of it from proceedings either of the government’s own Ginwala inquiry or from other court proceedings, is not considered it is perfectly obvious that the court is likely to conclude that the decision to appoint the candidate, notwithstanding uncertainties about whether he is fit and proper, is irrational.
Those people who have complained about the ruling should give consideration to what sort of criminal justice system they would like to see were they to be suspected of a crime or were standing trial. Surely they would want it to be headed by someone who could not easily be bent by political interference.
Indeed, part of the government’s own national development plan re-commends a rapid departure away from politically influenced appointments in the leadership of the public service.
How the government, and the president in particular, responds to the Simelane judgment will be telling. Will Zuma take a leaf out of Nelson Mandela’s book and affirm the court’s duty to rule on the constitutionality of his executive decisions, as Mandela did with the South African Rugby Football Union judgment?
The signs are not promising. The government’s ire has been smouldering ever since the Glenister judgment, in which the Constitutional Court declared that the decision to disband the Scorpions was unconstitutional, in essence, because their replacement, the Hawks, lacks sufficient independence. Some ANC leaders believe the courts are overtly anti-Zuma.
The latest rendition of this agitation was the announcement two weeks ago that the Cabinet had agreed to a “review of the performance” of the Constitutional Court — as if it were some department of state. Understandably, given the context of growing disharmony between the government and the judiciary, this announcement attracted a shrill expression of concern from many liberal and progressive commentators.
My own reaction was initially different: bring it on! The court has nothing to fear; it can be proud of its record. And, reaching in chronically optimistic fashion for crumbs of comfort, one noted the emphasis on “socioeconomic transformation” in government spokesperson Jimmy Manyi’s citation of the review’s “terms of reference” — if I were a progressive Cabinet minister wanting to nudge this idea in a less malign direction, I would have insisted on no less.
But, on more considered reflection, I came to realise that any response that appeared to accede to the notion that the executive has some kind of right to “review” the court would be to invert, and thereby pervert, the constitutional relationship between the two.
This is not to argue that judges should be unaccountable. Of course they should be accountable. They, too, must operate within the confines of the law. Moreover, they must tread carefully when they do come up against public power. They should be mindful of the democratic mandate that the government has been given, but their job is not — as Friedman argued — to respect public opinion. It is to be custodians of the Constitution, which was the product of a very painstaking piece of democratic process in the mid-1990s.
Though critics such as Ngoako Ramatlhodi are all too eager to argue that the court and the ConÂstitution are “anti-transformation”, their failure to cite evidence in support of this argument invites the conclusion that they are either looking for scapegoats for the government’s own failures or else are really talking about property ownership but dare not say so outright.
These are choppy waters. When commentators provide succour to populist opinion that argues that a decision by the courts against the government is made simply because the president is a black person, then we head down a very dangerous road indeed.