It’s a matter of time before the roles will be reversed and it will be us in the media and civil society calling Constitutional Court judges “counter-revolutionary”.
We got hot under the collar when ANC secretary general Gwede Mantashe called Constitutional Court judges “counter-revolutionary”. We reminded him of the doctrine of separation of powers and judicial independence and we screamed “hands off our judges”.
But with Justice Mogoeng Mogoeng at the helm of our judiciary and more judges who embrace the same kind of conservative, religious and traditionalist outlook likely to be appointed to the Constitutional Court and other important judiciary seats, it’s quite possible that we could also emulate Mantashe and accuse Constitutional Court judges of being “hostile to us, of being driven by selfish interest and of threatening the stability of government” (all these are Mantashe’s concerns about current Constitutional Court judges).
The war being waged around the judiciary, particularly Constitutional Court judges, is a war about values, about transformation, about who should best defend the spirit of our Constitution. It is a conflict which is almost inevitable in a transitional democracy, in which the majority party seeks to impose its views on the rest of society, advancing the argument that as the elected representative, it best encompasses what people want but in which vigilant civil society is wary that majoritarianism not being used to ride roughshod over dissenting and minority views.
It was Western Cape High Court judge president John Hlophe’s alleged lobbying on behalf of then accused ANC president Jacob Zuma that first placed these issues on centre stage. Hlophe was accused, essentially, of trying to influence the outcome of a case against Zuma in the Constitutional Court. That dispute remains unresolved, but it was the first signal of underlying tension about the role of the judiciary.
Faced with a backlash on Hlophe, Mantashe fumed: “We are saying, this is a psychological preparation of society for their [judges] pouncing. The issue there is not Hlophe … it’s Zuma. The Constitutional Court is sitting in judgment on Zuma. They create a hullabaloo in public that is preparing society for their pouncing. “They must give the judgment and not prepare us. They must not use Hlophe as a scapegoat to hit at Zuma. Our revolution is in danger. We must declare to defend it till the end.”
The organisation Freedom Under Law (led by former Constitutional Court judge Johann Kriegler), Democratic Alliance leader Helen Zille and others, have ensured that this matter stays in the public eye and has won two cases against the Judicial Service Commission (JSC)for its handling of the Hlophe matter. The impression created among some black lawyers is that the above-mentioned organisations and individuals do not trust the judgment of the JSC, or, more generally, black people as a whole.
This, I think, is the heart of the matter. It has led to a contestation that often results in black lawyers having a knee-jerk reaction, being determined to oppose anything coming from this civil society group and similar like-minded entities. The response surfaces in every court case that Freedom Under Law successfully refers back to the JSC for review.
The JSC, which consists mostly of government appointees, will find a way to arrive at an outcome that does not favour the “liberal” wishes of civil society groups. This is best exemplified by JSC commissioner advocate Dumisa Ntsebeza, who made it clear that while he personally preferred Justice Dikgang Moseneke as chief justice over Mogoeng, he would not dare be seen siding with rightwingers and would therefore rather settle for the president’s choice.
In his words, he could not countenance “getting into the indignity of a feeding frenzy that is characterised by an unprecedented savage attack on another black judge”. He added: “The moment we, the previously oppressed, start to get praise from those who otherwise still resist our claim to equality, we must be very worried. We are not in the same struggle. We must not be confused as to whom our allies are.”
What this means, ladies and gentlemen, is that for the next while, the JSC will probably appoint more of the kind of judges we consider conservative, controversial and whatever else. Political consideration will trump judicial merit for some time.
If it is indeed true that some Constitutional Court judges turned down the chief justice post in deference to a candidate they thought most deserving, namely Moseneke, it will mean that we will further polarise the Constitutional Court into current “counter-revolutionary” judges and Zuma appointments.
In the process, our highest court could be turned into a factionalised institution in which decisions are made not on the basis of argument and facts, but on the need to balance out the other side. At that point, the media and civil society could sing from Gwede’s hymn sheet, calling some judges “counter-revolutionary”. How time flies.