The influential chair of Parliament’s justice committee, Yunus Carrim, has called for the Judicial Service Commission (JSC) to consider opening to the public some of its hearings on the conduct of Cape Judge President John Hlophe.
‘The judiciary is independent but it is also, in a broad sense, accountable to the public,” the ANC’s Carrim told the Mail & Guardian on Wednesday.
‘Obviously there are sensitivities entailed, but given the status, dignity and role of the judiciary in our democracy and the public interest in the matter, the JSC might want to consider having a part of its inquiry into the allegations against him in public.
‘At the very least, we think it should provide a comprehensive explanation for its final decision on the matter.”
Parliament will have no say in the controversy surrounding allegations that Hlophe sought to influence the decision of the Constitutional Court in litigation affecting ANC president Jacob Zuma, unless the JSC recommends that he is impeached.
Removing him from the Bench would require a two-thirds majority vote in the National Assembly and the assent of President Thabo Mbeki.
Such a situation, Carrim pointed out, is without precedent. ‘The committee is concerned about the allegations against Judge Hlophe, but he must be given a fair chance to respond in terms of the processes in the Constitution and legislation.”
If impeachment is recommended it will be up to the Speaker of the National Assembly, Baleka Mbete, to decide whether the issue is first considered in committee or goes straight to the house for a vote. Carrim said it would most likely be dealt with first by his committee or an ad hoc committee set up specifically for the purpose.
Opposition parties, with the African Christian Democratic Party (ACDP) in the vanguard and the Democratic Alliance close behind, have been sharply critical of Hlophe and most would vote to impeach if the JSC recommends it.
ACDP justice spokesperson Steve Swart has written to the JSC asking why it did not act on evidence of tax irregularities that arose in its investigation of Hlophe’s controversial moonlighting for the financial services group, Oasis.
‘Given the public outrage on the issue — and the way it undermined confidence in the JSC and the judiciary — this needs to be handled speedily and transparently. There should be public hearings,” Swart said.
The ANC’s parliamentary caucus is sharply divided over the issue — and not straightforwardly along the lines of the Zuma and Mbeki camps, which have splintered and reconfigured since December.
Hlophe has in the past entered the National Assembly to cheers from backbenchers, who see him as a champion of aggressive racial transformation of the judiciary and a victim of a white-dominated old guard among judges and legal practitioners.
But many others, including some of the most influential and senior MPs, are embarrassed by Hlophe’s conduct and the apparent backing he has had from the ANC and government.
The picture is further complicated by anger among many in the party, not least former justice committee chair Fatima Chohan and Deputy Justice Minister Johnny de Lange, over the role played by senior legal figures such as Deputy Chief Justice Dikgang Moseneke and advocate George Bizos in lobbying Mbeki to scupper legislation aimed at overhauling the judiciary.
These people may not support Hlophe, whose conduct has made their project harder to sell, but they also give some of his critics short shrift.
Their complaints about judges improperly interfering in the parliamentary process surrounding the judiciary have been seized on by some of Hlophe’s backers at the legislature, who think he would be more amenable to the changes the ANC wants (see main story).
Ruling party MPs who spoke to the M&G this week said that differences would follow mainly racial lines and some of Zuma’s most ardent backers would back Hlophe simply because he was seen as supporting their leader.
But they also said that many of those associated with Zuma wanted to distance themselves from Hlophe and the ’embarrassing” allegations against him. Others are keeping their powder dry. Said an ANC national executive committee member and MP: ‘It will only harden attitudes if the media is seen as driving this thing — there will be conspiracy theories and so on. We don’t know the facts and I wouldn’t want to speculate on something like this that has such huge implications for society.”
But it is clear that if the JSC recommends impeachment MPs will have very little room for manoeuvre.
Said Carrim: ‘Given the constitutional and legislative provisions on the independence of the judiciary and the role of the JSC, I would imagine that the National Assembly would find it difficult to reject the JSC’s decision.”