In his masterful treatise on democracy, The Future of Freedom, Fareed Zakaria of Newsweek writes: “The ‘Western model of government’ is best symbolised not by the mass plebiscite but the impartial judge.” Impartial judges, independent public institutions, a free press — all these, Zakaria argues, are the best guardians of democracy.
But who guards the guards? South Africans viewed the events of the past week with a mixture of hope and fear.
Our country won an important victory for independent institutions when the Independent Electoral Commission (IEC) dumped its Cape Town municipal electoral officer, city manager Wallace Mgoqi, who was regarded as a political appointee.
But there was some bad news.
Parliament announced that it had extended a VIP invitation to its opening to Jacob Zuma, who is facing trial on charges of rape and corruption.
The most alarming news of all, however, was that the ANC government is persisting in its attempts to place the judiciary under executive control.
The 14th Constitution Amendment Bill would, if passed, give power over the administration and budgets of courts to the minister of justice, effectively putting judges at her mercy. The Bill would also grant the president far greater power to appoint judge presidents, effectively cutting out the Judicial Services Commission.
If the government has its way, these appointments will be handled almost entirely by a politician.
In addition, the Bill extends the jurisdiction of the Constitutional Court in a way that reduces the power of lower courts and implies that the Supreme Court of Appeals (SCA) would play less of a role than it has before. This is worrying, given that the SCA has shown greater independence from the executive and that the government has tried to circumvent it in the recent past.
An orange light starts to flicker when the government starts to tinker with judicial independence. That tampering, in turn, could have serious consequences for South Africa.
Ironically, in the same week that the judicial Bill was being debated, a group of economists from Harvard and the Massachusetts Institute of Technology were visiting South Africa to examine ways of bolstering our economic growth to the levels that the government has set for the country.
It is a no-brainer that tampering with judicial independence is a sure-fire way to undermine investor confidence. After all, it is both the perception and the reality of a strong and independent Bench that separates South Africa from so many other developing countries looking for the elusive foreign investment buck.
When the government’s proposals were first revealed about a year ago, they caused an outcry. The current and former chief justice criticised the government’s attempt to undo the separation of powers that is at the heart of the constitutional democracy.
The government seemed to indicate that it would listen to the judges, and that it would make a few changes to its proposals. But many offending provisions are still there.
Furthermore, it tried to sneak the draft Bill through, unseen. The government set the period for public comment on the Bill over the Christmas holidays, and made the deadline for comment January 15.
Few judges were apparently aware of the date, and few had the opportunity to review the legislation. The government appears to have behaved deviously, and has revealed its contempt for judicial independence.
In the same spirit, the ANC is refusing to say who its mayoral candidates are until after the election. Everything must be done in secret; everything must be controlled by Luthuli House.
What is to be done?
The upcoming municipal elections are a contest between political parties. They do not allow citizens to have a direct voice in the affairs of the judiciary, the IEC, Parliament or any other independent institution.
But South Africans who care about these institutions do have a choice.
On one side stands the ANC, a party that does not trust any institution in South Africa to conduct its own affairs, and which explicitly seeks to control all the “levers of power” in society.
On the other side stands the DA, a party that has consistently proven its commitment to the independence of the judiciary and other institutions, a party that believes in federalism and a real voice for the people in governing their own affairs.
The choice is a clear and crucial one. The future of our democracy hangs in the balance.
This is an edited version of the January 20 edition of South Africa Today, the weekly letter from DA leader Tony Leon