Many South Africans were stunned this week by President Jacob Zuma’s nomination of Constitutional Court Justice Mogoeng Mogoeng to succeed Sandile Ngcobo as chief justice.
It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the “disappointing inaccuracies and distortions in the responses and commentary on [Zuma’s] nomination”. South Africans are more sophisticated than that.
From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.
It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.
A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.
He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot — they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.
Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president’s and the ruling ANC’s understanding of the expected tension among the three arms of government in a constitutional democracy.
In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to “arrest the functioning of government”. What is, actually, the normal modus operandi of a constitutional democracy — the constitutional testing of legislation — appears to be a “problem” for Mantashe.
Mantashe’s problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma’s gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo’s term, the president seems driven by malice when engaging with that court.
There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.
