Adrift from our democratic moorings
South Africa’s Constitution requires the Constitutional Court and all others to interpret, protect and enforce the fundamental principles and rights it contains. So why is President Jacob Zuma and the Judicial Service Commission (JSC) imposing Justice Mogoeng Mogoeng as our chief justice when he is clearly unsuitable for the position?
It says a lot about ANC rule under Zuma. Excessive presidentialism, loyalty to the centre, intolerance of dissent and debate and executive lawlessness did not leave with Thabo Mbeki. Not one ANC branch leader or Cabinet member challenged the recommendation of an obviously flawed individual, despite genuine concerns raised by progressive civil society. ANC Women’s League president Angie Motshekga sacrificed the interests of women on the altar of “loyalty to the president”. And with the Communist Party defending Zuma’s choice, he has achieved what Mbeki could not: a lackey SACP. Cosatu stood up, but was ignored.
The broad church largely swallowed Pastor Zuma’s medicine, yet Mogoeng threatens the independence of the Constitutional Court. The JSC failed its section 165 constitutional mandate to “assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness”.
The affirmation of Mogoeng is a tragic step in the wrong direction. In contrast, Nelson Mandela and Mbeki’s Constitutional Courts were full of dynamic individuals loyal to the Constitution, not politicians. South Africa is losing its democratic moorings with the compromised JSC, the end of the Scorpions, attacks on the Asset Forfeiture Unit, the “secrecy bill”, the shoot-to-kill police force, the continued looting of state resources and the ongoing socioeconomic inequalities.
By not appointing Deputy Chief Justice Dikgang Moseneke, the ANC fails to harness the best we have for its nation-building and developmental state projects. Instead, Zuma is institutionalising authoritarian populism in the state while anti-poor economic policy remains. Zuma has also emboldened religious and traditionalist conservatives to seize the democratic project under the guise of Africanism, culture, tradition and assumed majority opinion—Mogoeng used this discourse at the JSC interview.
Many progressives instinctively defended Mogoeng against what they saw as liberal, racist, white attacks. Vested legal interests have used Mogoeng’s fallibilities to defend their space. But we cannot ignore the fact that his values are inconsistent with judicial transformation. This moment calls for clarity of thought, commitment to principle and dissent.
Zwelinzima Vavi told SAfm that if the man who had dragged his partner behind a bakkie for 50m was white there would have been an uproar, and correctly so; even more so had the judge reduced the sentence and ensured no prison time was served by the offender, as Mogoeng decided in State vs Mathibe.
That made me think: if as chief justice Mogoeng had to hear a case for same-sex marriage, how would he weigh up his mandate from “God” against that of the Constitution? In Mogoeng we will have a black chief justice, but women’s rights and equality will not be safe in his hands. Our understanding of judicial transformation, therefore, has to encompass a broader set of substantive factors that goes beyond numbers.
Closing democratic space
Do Mogoeng’s supporters realise they are acquiescing in closing democratic space and assailing the sanctity of the Constitutional Court? Mogoeng will not only head the Constitutional Court for 10 years; he will also chair the JSC, which recommends appointments to all other courts. He will be at the centre of deciding the next generation of judges. He will preside over the interviews of every judge replacing the Bench of the Constitutional Court, including his successor. His legacy will last far longer than 10 years.
Do we have to dig up the histories of compromised judiciaries from the United States, Zimbabwe and other countries to convince Mogoeng’s defenders? Given his “calling by God” and his promised defence of those put under scrutiny by the media and civil society, Mogoeng also portends a scary future for dissent and critical thought. His defenders must confront and transcend the ANC identity, loyalty to the president and narrow “black” solidarity that are perhaps behind the silence of many progressive black lawyers, advocates and judges.
Commitment to the Constitution must not just be claimed, as Mogoeng did before the JSC, it must be seen in practice. Mogoeng has already failed this constitutional test. It will be surprising if he can separate his conservative personal beliefs from his work. Critical legal scholars have shown that the personal views, circumstances and histories of judges are a factor in their judgments; these get reinforced by dominant and oppressive ideologies, systems and structures in society. If this was not the case, there would be no argument for more black and female judges. It will take extraordinary courage for Mogoeng, for whom the Bible and not the Constitution is supreme, to stand firm for lesbian and gay rights if his own interpretation of the Bible says he must not.
We cannot reduce critiques of Mogoeng to the concerns of liberals, whites and the media. The view that our constitutionally protected civil and political rights are liberal or bourgeois is flawed: they affirm the democratic values of human dignity, equality and freedom. They were not delivered from on high by liberals, but fought for by ordinary people. An ordinary woman challenged the apartheid government’s influx control policy and won administrative justice; trade unions won worker rights.
It is a critical mistake to hand over these rights to liberalism, which is strategically incapable of advancing them. These rights must be used to advance a progressive agenda of social and economic change. To miss this is to fail to confront the failures of the ANC in transforming our society. The Constitution also has grey areas, including the so-called property clause, that require reasoned debate and sustained social and political struggle. Tragic as the decline into authoritarian populism is, we must remember that rights, democracy, freedom and systemic change are not won by courts or the political elite. They are won by the people—organised, conscious and mobilised behind clear demands for socioeconomic change. The struggle for democracy has begun all over again.
Mazibuko Jara is part of the Democratic Left Front