After years of tense deliberations between the South African judiciary and the government, the process of defining South Africa’s first enforceable regulations concerning judicial ethics is slowly nearing its end.
On January 19 this year, interested parties submitted proposals at a public hearing on the draft Judicial Code of Conduct and Register of Financial Interests. But the Register was not tabled at the hearing as expected. It appears that contentious issues such as extrajudicial work, and judges being members of political parties, are stalling the process.
Such issues raise questions about judicial independence and judicial accountability. These principles are often perceived as being incompatible, but in fact they are inextricably linked. They are even potentially reinforcing, with a critical role in promoting public confidence, an essential building block of democracy.
The importance of judicial independence is unquestionable. Enshrined in our Constitution is the responsibility to ensure the separation of powers between the three arms of government and to provide “checks and balances” on the executive and the legislature.
Political analyst Shamiela Seedat says: “The judiciary is essentially developing and redefining South African jurisprudence and is therefore playing an important role in the transformation of the country into an open and inclusive constitutional democracy.”
The independence of the judiciary is irrelevant unless the public has confidence in it. The judiciary needs a degree of accountability to uphold at least a minimum standard of ethics, says Seedat in a paper published by the Institute for a Democratic South Africa (Idasa). The code and register are good strides in this direction.
In Section 14 (3), for instance, the code stipulates that “a judge does not directly or indirectly negotiate or accept remuneration, gifts, advantage, or privilege that is incompatible with judicial office or that can reasonably be perceived as being intended to influence the judge in performance of his or her judicial duties”. A recent practical example was the case of Cape Judge President John Hlophe, who was found to be receiving remuneration from a private company.
Complaints
In 2000, a process began to develop guidelines for judges. But it was not legally binding and did not include sanctions. The Judicial Service Commission Amendment Act was passed in 2008 and gives effect to section 180 of the Constitution, which provides for national legislation to address serious yet unimpeachable complaints against judges. According to the Government Gazette, the Act aims to provide clearly defined procedures to deal with complaints against judges, including a Judicial Conduct Committee (a formal mechanism for dealing with such complaints).
It provides for a code of conduct that “serves as the prevailing standard of judicial conduct” and aims to establish and maintain a register of judges’ financial interests, as well establishing judicial-conduct tribunals.
Between 2008 and 2010, the code and register were drafted by the chief justice, in consultation with the minister of justice. In October 2010, the Ad Hoc Joint Committee on the Code of Judicial Conduct and the Regulations on Judges’ Disclosure of Registrable Interests was established. It held public hearings in January. The timelines from here on are unclear.
No dates have been given for the presentation of the draft register. After taking into consideration the public’s submissions, the committee will go through both the code and the register clause by clause basis. Then it will be submitted to Parliament and then to the president to sign into law.
This process must now be expedited. The milestone of the Amendment Act of 2008 received a great deal of attention, but more than two years have since passed, and the provisions of the Act have yet to be implemented.
There is a delicate balance between independence and accountability. But they can be mutually reinforcing and result in the greater good. How the people of South Africa view the judiciary, whether they trust rulings, and whether they believe that the judiciary is a reliable and accessible instrument for their protection, is critical.
Both government and the judiciary need to see that while there may be a lot at stake in the proposed code, there is much more to gain in advancing transformation and consolidating of democracy. Ultimately, power can only be legitimate if combined with accountability. It is time to put this theory into practice.
Shireen Mukadam is a researcher at the Institute for Security Studies