worst enemy
The Truth and Reconciliation Commission is hesitating over a decision whether to subpoena members of the judiciary to appear before it following their failure to do so voluntarily. The hesitation apparently results from indications by the Bench that such a move would represent a constitutional challenge to the independence of the judiciary and would be fought as such.
The independence of the judiciary is an issue close to our hearts and in other circumstances we might have advised Desmond Tutu to let well alone. But the recent outburst of Judge David Curlewis provides a timely, if unintentional, reminder of the propensity of our judges to be their own worst enemies.
Curlewis’s comments in the Moses Sithole case – denouncing the government for abolishing the death penalty – have been widely reported. What has gone unreported is a letter he wrote to the truth commission earlier this year, in answer to an invitation to appear before it during hearings on the legal system.
“Three pages of waffle cannot disguise the fact that what you suggest will compromise the independence of the Bench,” he scrawled. “If you are a politician you will not understand this, let alone care about it.
“However, I care about it very much and decline to take part in such a process. My judgments are available if you are at all interested in the only thing that should interest you.”
Leaving aside the intemperate language, the judge cannot have it both ways. The ruling of the Constitutional Court – the highest authority – that the death penalty was unconstitutional put the issue beyond further judicial questioning.
Curlewis’s excited intervention clearly represented interference in the political arena, where the issue is perhaps not yet dead. By doing so he opens himself – and the Bench which he professes to defend – to political attack. In those circumstances it is particularly ironic that it should be Curlewis who insists so strongly that the judiciary falls outside the purview of the truth commission.
Curlewis’s less-than-judicious utterances of the past in fact offer a compelling argument as to why the Bench should be subjected to closer scrutiny by Tutu and his fellow commissioners.
This is, after all, the judge who, in the Eikenhof case, deprecated the suggestion that police used torture to extract confessions. This is the judge who, in the Mothopeng case, said: “The courts of this country have for over a century acted fairly and independently and honestly, and independently of improper influence. They do so today, and will do so in future . In this regard the courts of no other country surpass our courts and very, very few equal them.”
If ever there were a judge who needed to be confronted with the truth it is Curlewis. If ever there were an institution which bears examination by the commission it is a judiciary which harbours such as Curlewis.
We would urge the commission to press ahead with its subpoenas. They will no doubt be opposed by the judiciary and fought over in the courts.
But we maintain sufficient confidence in the Bench to say that it is a fitting place for issues of great importance to the future of our country to be decided.
Give the ANC leaders amnesty
The National Party’s concern at the blanket amnesty granted 37 members of the African National Congress, including Deputy President Thabo Mbeki, takes the prize for the cheap shot of the year.
In the week after the former leader of the party, PW Botha, once again effectively told the truth commission to stuff off, labelling it a “circus”, it would have been more tasteful for the Nats to remain silent.
We would contend that the fact that the ANC leadership appeared before the commission, made a full and frank disclosure of its military and political struggle against apartheid, and – most crucially – took collective responsibility for what was done in its name was enough to earn amnesty.
Leaders gave the commission lists of operations carried out as well as detailed information about human rights violations in the camps outside the country.
On this basis, the rank-and-file soldiers who were acting under orders of the leadership should be granted amnesty and the commission should not be prevented by technical points from moving on to more intractable matters with the limited time it has left.
The ANC’s willingness to accept responsibility stands in marked contrast to the National Party’s defensiveness and refusal to own up to its commanding role in the sickening swamp of violence and abuse that the commission has heard about.
Having disowned the foot soldiers who kept them in power for so long, the Nats have shown they are willing to obfuscate until the commission just goes away.
It is a disconcerting performance of ineptness and dishonesty that has undermined the party’s credibility with ordinary people, and thus any chance that it might have had to become a viable opposition.
The country, desperate for a real opposition with real ideas, is presented instead with hypocritical whingeing parading as principle.