In November last year the deputy chief justice, Dikgang Moseneke, delivered a speech reflecting on 20 years of constitutional democracy. His speech covered many issues, including the performance of the courts, the country’s record after 20 years of the Constitution and the challenges that lie ahead – with a particular focus on land redistribution and restitution in general.
One section of the speech proved controversial. Moseneke raised the question of an appropriate constitutional design for our democracy. In particular, he referred to the powers given to the president by the Constitution to make key appointments, including the chief justice, the deputy chief justice, the national director of public prosecutions and the heads of the chapter nine institutions such as the public protector, the Human Rights Commission, the auditor general and the Independent Electoral Commission.
Moseneke asked whether the Constitution should not have provided for these appointments to be made by a deliberative collective rather than by “an individual functionary”.
He framed the key question thus: “How best may we shield appointments of public functionaries to institutions that guard our demo-cracy from the personal preferences of the appointing authority?”
Moseneke noted that our courts have been increasingly required to adjudicate challenges against the rationality of several appointments made by President Jacob Zuma.
At a recent conference of the National Association of Democratic Lawyers, the treasurer general of the ANC, Dr Zweli Mkhize, delivered a stinging riposte to Moseneke.
He questioned the prudence of a sitting deputy chief justice making comments about the design of the very Constitution the judge had taken an oath to uphold.
“At what point should these comments be seen as political statements uttered by a senior judge?” asked Mkhize. Given the nature of the questions about the presidential power of appointment, he asked, would it be “appropriate for the [deputy chief justice] to hear cases relating to challenges to these powers?”
He raised a further important point: “Maybe the [deputy chief justice] is correct that constitutional powers should be reviewed.” But why, he asked, should one stop at the powers of the president and not conduct a review of the powers of all three arms of the state?
Two important issues lie at the heart of this dispute. First, what is the scope for legitimate comment offered by a sitting judge, in this case the second most senior judge in the country? Second, when is it appropriate to amend the Constitution?
The approach to legitimate judicial comment made outside the courtroom has changed considerably. As Professor Kate Malleson wrote almost 15 years ago: “The inward-looking culture that is so characteristic of the old judiciary is gradually being abandoned as judges come to see themselves as members of a global legal community where knowledge and ideas are exchanged across jurisprudential boundaries.”
Influenced by the British judiciary, South Africa developed this “inward-looking culture”.
In 1955 the British lord chancellor, Lord Kilmuir, laid down rules prohibiting judges from engaging with the media on the basis that the judiciary had to be insulated from the controversies of the day. That was certainly the South African way despite a few notable exceptions to the contrary during apartheid, even though a later lord chancellor, Lord Mackay, abolished the Kilmuir rules in 1987.
Today it is widely accepted that judges may speak about the rule of law, and about the independence of the profession in general and the judiciary in particular.
The key test to determine whether a judge has exceeded his or her right to speak outside the courtroom on matters of legal interest is whether that judge’s impartiality has been compromised by speaking out.
Moseneke was careful to avoid any comment about appointments made by Zuma. He made no comment on the controversy around key appointments to – and subsequent suspensions from – office, a controversy centred on alleged attempts by the executive to control key positions meant to act as guardians of constitutional democracy.
Moseneke’s main concern was that the courts are increasingly being drawn into controversial questions to do with presidential appointments and, further, to ask whether the constitutional values of transparency and accountability would be better served by greater checks on the potential for a concentration of power in the hands of one person.
Mkhize raised an important point, which is deserving of debate. But little in the way of a case has been made for how Moseneke’s impartiality may have been compromised. It must be emphasised that, in any case brought before the Constitutional Court, the requirement is that the judges apply the existing Constitution to the facts of the case.
By contrast, the second issue raised by Mkhize is far more powerful. Whatever the merits of constitutional change, we should not be engaged in fundamental constitutional reform because of our concern about the actions of a transient regime.
Also, as Mkhize suggests, some would change the powers of the president but others, given the chance, would push for a reduction in judicial power. The prudent course at this stage of our history is not to allow poor changes to be made on the back of a possible positive amendment.
These debates are important. It is be hoped that Mkhize has not put a damper on a more engaged judiciary.“The inward-looking culture that is so characteristic of the old judiciary is gradually being abandoned as judges come to see themselves as members of a global legal community”