The past couple of weeks have confirmed the truly risky nature of our constitutional journey, begun more than a decade ago. For most of the first decade it appeared as if the country had been blessed by a miracle. But warning sounds have been evident for some time.
The xenophobia of the past few weeks revealed the uncontrolled visceral hatred that lurks below the surface of our society. The lesson was clear: we South Africans have not yet embraced the normative basis of our Constitution, that all who live here are deserving of equal concern and respect.
Last week the seemingly endless problems surrounding Western Cape Judge President John Hlophe bubbled again to the surface. The complaint was probably unique in a democratic society in that it was lodged by the highest court in the land, the Constitutional Court.
The substance of the complaint is of the gravest kind: interference with the judiciary in the execution of its function. Let there be no mistake — had the complaint been made against an ordinary citizen, he or she would have been charged with a criminal offence.
As soon as the news broke, the debate began to take the form of the previous controversy, which had to do with Hlophe’s financial relationship with Oasis. The Cape Bar Council called for his suspension, pending the outcome of the inquiry. Newspaper comment followed suit. Hlophe was quoted as both denying the allegations and suggesting that the complaint was yet another manifestation of the campaign against him.
The reason for this campaign was not spelt out by Hlophe, but newspaper reports provided some lines for speculation. The Zuma presidency-to-be would prefer Hlophe as chief justice over the current Deputy Chief Justice, the hugely distinguished Dikgang Moseneke.
Hlophe’s supporters rallied as they did last time: no reason for him to step down pending an investigation; he is innocent until proven guilty. So the scene is set for a replay of last year. But this time the accusers are the highest court in the land. Will the legal profession be divided again, essentially on race lines, so that no agreement can be reached as to how to deal with the crisis?
Last time the major lesson was that, as a country, we cannot agree even upon one broad set of standards or values by which to deal with public conduct. In turn, that raised serious questions about the country’s constitutional future. If there can be no shared set of basic values, there can be no Constitution in practice.
That must be the challenge this time round: can we, the people of South Africa, agree about the appropriate standards for judicial conduct? If we fail, there may not be a judiciary. We are dependent upon an independent judiciary for the future of our constitutional democracy.
Hlophe is clearly innocent until and unless the Judicial Services Commission (JSC) pronounces to the contrary. Both he and the country will need the matter to be dealt with speedily and openly. The ultimate decision of the JSC must be clear, reasoned and understandable, so that it can be justified and thus supported. The public must know precisely how and why the JSC has acted. In this way the gulf that emerged last time can be bridged and the country can emerge with agreement about the basic values that should govern public institutions.
We, the public, are the last line of defence for the institution that protects all of us from arbitrary exercises of power. We have to stand together and insist on an independent and incorruptible judiciary. If we fail to agree, within a decade we will no longer have constitutional democracy.