One’s first instinct, on reading the shortlist of candidates for the four vacancies on the Constitutional Court, is simply to sigh with relief that Western Cape Judge President John Hlophe is not on it.
Wherever it is that he continues his many battles — and he is sure to do so — we have been spared a damaging war on Constitution Hill, at least for now. His exclusion, however, is not as surprising as it may seem.
It has been clear for some time that many in the ANC were uncomfortable with Hlophe and that they believed he was essentially unappointable. Even among “Africanist” members of the Judicial Service Commission (JSC) he had serious critics.
To be sure, they all made a theatrical meal of supporting him, principally because they could not be seen to be joining a “lynch mob”, but also because he was a useful distraction from the broader agenda to transform the judiciary along lines that the governing party is more comfortable with.
We must await President Jacob Zuma’s decision reducing the shortlist from seven to four before drawing final conclusions, but the unfolding of the interview process, as we report this week, clearly suggests a politicallyÂmotivated effort to “balance” what is seen by some as too “liberal” a court.
It won’t do to be naive about this — politicking is to be expected and the balance of influence on the court will likely shift back and forth with time. What has been disturbing is the extent of political interference, even abuse, at the JSC. Most glaring, of course, was Ngoako Ramatlhodi’s intervention, ostensibly to protect Hlophe from hostile questioning, but the packing of the commission by Justice Minister Jeff Radebe ahead of the process is what laid the foundation.
It was clear, too, that there were separate contests for black men, black women and white people. That is the only way to understand the exclusion of genuinely progressive candidates like Dennis Davis and Kathy Satchwell and the exposure of some candidates to savage questioning while others were protected.
Despite that, our concern is not the composition of the list per se — there are certainly four capable judges for Zuma to choose from among the seven. The worry is rather the way that this result was arrived at — through what looks far too much like the result of political deals between and among the lawyers, judges and politicians on the commission, rather than a rigorous institutional process.
The JSC has a mountain to climb to restore its reputation and all it has managed to do so far is limit further damage. Future interview processes must be robust, thorough and fair vettings of the candidates and the commission’s choices must be thoroughly explained. Transformation concerns need to be captured not just in demographic representation (although that must remain critical) but in judicial attitude.
Above all we need to be able to have confidence that the commission will select judges who are capable of delivering the kind of justice envisioned by our Constitution, alive to the deep complexities of our society, but also bold enough to rise above them.
There’s a kind of hush—
Caster Semenya and Mavivi Myakayaka-Manzini are both famous and both have suffered abuse because of their gender. Semenya is a world-class athlete and Myakayaka-Manzini a world-class politician who served as the ANC head of international relations and is now a big shot in the department of international relations and cooperation.
Semenya was subjected to speculation about her sex and Myakayaka-Manzini was beaten by her husband, spy boss Manala Manzini, because she refused to cook and iron his clothes.
There the similarities end.
Plenty of support was forthcoming for Semenya — she was said to be suffering at the hands of “racist whites” by the ANC Women’s League, which became fiercely protective of “our girl”.
But for the woman who had been deputy president of the league, and who suffered at the hands of someone the ANC knows well, there was not a word.
Despite Manzini’s shameful acknowledgement to the Sunday Times that he had physically abused his wife, not a single statement condemning his actions came from the league or the mother body. Neither did the intelligence ministry have anything to say.
How do we take the party’s so-called commitment to gender equality seriously if its members are not willing to start at home? Even Noluthando Mayende-Sibiya, minister of women, youth, children and people with disabilities, has not come out to support a comrade.
The Mail & Guardian reported two years ago on the investigation into the spousal abuse in the Manzini home and at the time top-level ANC officials were given the task of dealing with the issue.
Obviously they haven’t, because this week Myakayaka-Manzini laid her soul bare to the Sunday newspaper.
The arrogance of a man who admits to beating his wife stems from an overdeveloped sense of power in someone who thinks he is untouchable and that his political superiors and friends will support him because they think just like him — namely, that a wife is her husband’s lackey and should do as he says.
It is this kind of hush about gender issues that the league and Mayende-Sibiya’s ministry are supposed to address. They should be ashamed of their craven silence and so should the men around them, from President Jacob Zuma on down.