Fudge, muddle and mediocrity. Not the name of a new Rustenburg law firm, but the emerging modus operandi for resolving tension between law and politics.
Are these really to be the watchwords of the constitutional order?
There are antecedents to the Judicial Service Commission’s (JSC) decision to ‘finalise†(sic) without a final hearing the complaint against Western Cape Judge President John Hlophe by the Constitutional Court and his counter-complaint against them.
First, there was public protector Lawrence Mushwana’s decision to avoid investigating Oilgate — more a case of blatant, intellectually dishonest cover-up and an unlawful one at that, as the high court has recently ruled.
Second, the decision of the National Director of Public Prosecutions not to pursue corruption charges against Jacob Zuma. There the fudge was designed to obscure the political deal that lay behind the decision; the muddle and mediocrity were in the execution of the legal elision.
In the Hlophe case one can understand the instincts of the government, which are not all bad. This is not necessarily an Mbeki-type meddling with the process for personal political gain as much as the ANC — and the president, in particular — seeking to ‘sort†a problem, to make an inconveniently damaging and divisive issue go away.
That gnarled political operator, Jeff Radebe, was given justice to do this sort of fixing and he has done his job.
However, to acquiesce with this approach would be to abandon the array of constitutional institutions that were established 15 years ago, recognising them as a mere façade, elegant adornments to the real political action that takes place offstage.
And if I were the judge president, my sense of triumph would be seriously tempered by the knowledge that this matter had not been satisfactorily disposed of.
In its determination to secure a political resolution, the JSC merely compounded the problem. Now the reputations of both the judge president and the Constitutional Court itself are sullied.
Even at its highest, Hlophe’s conduct may not have amounted to gross misconduct. To imagine that judges do not carry the bags of all manner of ideological and other interests and do not attempt from time to time to impose them on both their own decision-making and that of fellow judges is delusional.
It happens wittingly or unwittingly in courts all around the world. The real question was whether he was attempting to influence on the basis of a political mandate — which is what, according to her, he told Constitutional Court Justice Bess Nkabinde.
Disingenuously, the JSC found that Nkabinde was ‘firm†in saying that Hlophe had not said that the Zuma and Thint cases should be decided in a particular way — at least not with ‘sufficient consistencyâ€.
Naive as Hlophe sometimes may be, he would not have said so explicitly, if, in fact, he had been campaigning on behalf of Zuma.
Yet Hlophe fell into some kind of trap — either of his own or someone else’s making — and the legal establishment sought to gobble him up. They have half succeeded. Not only is he now bound to be asked about the matter at his interview for the Constitutional Court, but a cloud will linger over his probity.
After all, the JSC found that his conduct ‘may have been unwise, ill-considered, imprudent, not thought throughâ€. Sadly for Hlophe, he does not, therefore, emerge from this process unscathed.
The JSC must offer the president seven recommendations for the four vacancies. Although Hlophe may be the only one of the 20-odd nominated candidates with a PhD from Cambridge, there are at least seven others with excellent track records and credentials who do not carry such scars.
Moreover, the decision makes little or no contribution to constitutional governance. It fails to say anything of substance on the ethical questions.
Should a judge of one court raise matters with another? Can his or her freedom of expression be circumscribed? But this should not be about any one man; it is time to move on.
Of 400 advocates at the Cape Bar, only about 60 are black — and only six of them ‘black African†(less than 2%) — evidence of the scale of the transformatory work that remains to be done.
Hlophe should be left to continue the important transformation task he has pursued, admittedly clumsily at times, in the Cape.
The JSC hearings represent one of the most important moments for this country. The choices it makes will determine the trajectory of jurisprudence and of the relationship between the Constitution and politics, for the coming generation.
Will it extend fudge, muddle and mediocrity to the selection process? This has nothing to do with race; there are plenty of able black candidates. It is, rather, about the ideological and intellectual disposition of the members of the highest court.
Without bothering to specify how, Gauteng Judge President Bernard Ngoepe recently railed against the current members of the Constitutional Court for going ‘overboardâ€.
Twice he used the phrase and twice he stressed that this was not, despite the context — crime and punishment — a call for a populist approach to interpreting the Constitution, but rather to achieve ‘harmony†with the ‘general populace†— provided, that is, that they are not running ‘hair salons on the pavementsâ€.
Is this an overture to the rebound against modernity that some feared — another shift in the culture of the ruling class?
Perhaps so, but perhaps not: after all, it is unlikely that the new president will have forgotten that, but for the due process protections in the Constitution, he would probably now be in prison and not in the Union Buildings.
Having disposed of the Hlophe matter, the ANC can allow the JSC to do its job: to recommend for appointment people of independent mind, impartiality, integrity and judicial temperament, whose own value systems and world views accord with the underlying constitutional values of human dignity and substantive equality.
Indeed, perhaps it was necessary to proceed in the way the JSC did in order to do just that. Let’s hope so; for this is a critical moment.