The phoney war is over. The opening, last week, of the nominations process for the four upcoming vacancies at the Constitutional Court was a welcome relief.
It came much later in the year than originally expected. The delay has not been constructively used.
There were rumours that the law was to be changed to permit the four judges whose terms come to an end in the spring — Chief Justice Pius Langa and justices Yvonne Mokgoro, Kate O’Regan and Albie Sachs — to extend their tenures and opportunists have taken the gap to cause mischief of a different kind.
Whatever one’s affection for the judges concerned, changing the law to accommodate an extension was an inherently poor idea. Institutional change should rarely, if ever, be launched to preserve an individual office-bearer.
Instead, attention should switch to how best to stagger the terms of the judges of the country’s highest court: it is far from ideal to have such a large turnover in one year. If one adds Justice Tholie Madala, who retired late last year, it amounts to five out of the 11 judges in less than one calendar year.
This is potentially destabilising. Courts, like any institution, need a level of continuity if they are to be consistent in their performance and sufficiently resilient to withstand the inevitable political pressures that operate in a robustly functioning democracy.
And, during the hiatus pending the opening of nominations, the tension has mounted as the space that should have been occupied by a healthy public discourse on the attributes that should be found in the four new Constitutional Court judges has been dominated largely by a certain judge president from the Cape.
For reasons that I understand — the obstinate conservatism and persistent racism of substantial parts of the judiciary in South Africa — but which otherwise fill me with despair, the furore concerning Justice John Hlophe has moved with extraordinary rapidity from being a debate about his judgment and ethics to being a campaign by a group of acolytes for him to become the next chief justice.
This is an unwelcome distraction. Of course, there needs to be a public debate about the transformation of the judiciary, just as there needs to be far greater diversity on the Bench. But this discourse runs the risk of eclipsing the more significant constitutional imperative, which is transformation of society as a whole.
The problem is this: focusing solely on the transformation of the Bench sidelines the question of how best to change South Africa from being a place where the majority have to live in conditions of chronic poverty to one of security and dignity.
Advancing the social diversity of the Bench is likely to be a helpful and vital step in ensuring that the judiciary honours the socioeconomic transformatory instincts and values of the country’s founding document. But this should not be translated into believing that the appointment process should be dominated by one question — does this candidate add to the racial diversity of the Bench? — to the exclusion of another, more important one: will this candidate contribute powerfully to the radical socioeconomic transformation of this society?
The latter question is more ornate, more nuanced and far more complex. It requires a careful examination of the individual’s track record in terms of his or her judicial rulings and judgments.
Equally important questions concern energy and work ethic (such as how often they write the leading judgment), as well as imagination and creativity (for example, how often they write judgments that advance constitutional jurisprudence in bold ways).
We need to examine how assertive they are in imposing the values of the Constitution on the executive arm of government and how astute are they in balancing an appropriate level of deference to a democratically elected legislature with the need to be selectively and strategically activist in interpreting the scope of rights, especially in the realm of socioeconomic rights such as access to water or adequate housing.
For decades the progressive left has, internationally, suffered a troubled and at best ambivalent attitude to the idea of a Bill of Rights. But this has slowly changed. In more places, and with greater conviction, progressive politicians and organisations have come to recognise that a rights-based framework of governance can help not only to prompt but also to sustain a transformatory project in government.
Nowadays you hear senior members of the SACP and Cosatu acknowledging the important judgments that the Constitutional Court has handed down in a range of matters relating to substantive equality, gender equity, human dignity and service delivery. They have been compelled to accept that these judgments have made powerful contributions to the material living conditions of the poor.
They will also know that Langa, Mokgoro, O’Regan and Sachs have invariably been either the leading voices in this jurisprudence or on the progressive end of any argument or division in the court.
Comfortingly, the SACP and Cosatu are part of the new governing “coalition”. I have little doubt that their voice will be heard on the Constitutional Court appointments as much as it will be on industrial policy.
The political economy of the judiciary — and thus its alignment with progressive politics – is what is at stake here and I am confident that they know this to be the case.