Cabinet’s decision on the judiciary, announced on Thursday, seemed like a sweet offering, to be mistaken perhaps even for a conciliatory gesture after the rancour of the secrecy Bill fight. Cabinet spokesperson Jimmy Manyi spoke of the independence of the judiciary, enhancing the integrity of the Judicial Service Commission, the development of a mechanism that would promote the Constitutionally-enjoined obligation of cooperative government. But all this was sugar coating: because at its heart there was poison for our democracy.
The core of the decision is that the role of the judiciary is to be assessed by an institute appointed by government and that even the decisions of the Constitutional Court are to be subject to such assessment. This assessment of the judiciary, at the instigation of the executive, invites the assumption that the role of the courts, and the Constitutional Court in particular, as ultimate arbiters of our Constitution, is to be usurped. And so there can be no escaping the impression that for all the talk of enhancing the respective arms of government, the Cabinet’s crosshairs are firmly pointed at the judiciary’s independence.
I know only too painfully well what it means when the judicial arm of government is cowed, is subjugated before the executive: when it acts only as an extension of executive authority. Thirty four years ago this month, the inquest into Steve Biko’s death was held. Despite the extensive and overwhelming evidence that Biko had been abused and murdered by the security branch, Pretoria’s chief magistrate delivered a verdict that exonerated each and every one of them. Counsel for the family, Sidney Kentridge argued in his closing address that such a verdict would give license to abuse helpless people with impunity. And it did. Scores died in detention in the years that followed.
A journalist wrote at the time: “There’s no word of sorrow or anger by the authorities, not even a suggestion detainees in future won’t suffer the same treatment. They just don’t care. And that is what South Africa voted for.” And of course, that is what the small, white electorate voted for. Had the judiciary not been under the thumb of the executive, there is no guarantee that the chief magistrate would have reached a different verdict. But if the magistrate had had the assurance that finding the state culpable, that exercising the functions of his office properly, assessing fairly and independently, would have earned him no recrimination from the executive, there is a much greater likelihood that he would have delivered a just verdict.
Thankfully, we live now in different times. And yet the importance of strong, independent courts able to check government folly when it occurs remains. In the Treatment Action Campaign case, the Constitutional Court famously held that the government’s then policy of distributing Nevirapine, medication reducing the transmission of HIV from mother to child, to pregnant mothers living with HIV at only two clinics per province was in breach of the Constitution’s right of access to health care. Government’s policy was held to be unreasonable given that the manufacturers of Nevirapine had offered it to government free of charge for a period of two years and that the World Health Organisation had concluded that Nevirapine was an appropriate intervention to prevent mother to child transmission.
Who knows how many lives have been saved as a result of that decision. A cowed court, a court unduly fearful of executive repercussion could not have made such judgment. That the Constitutional Court did, that policy was altered, is a reflection of the health of our democracy, a tribute not only to our courts, but to our executive and legislative branches as well.
From our past, to our near past, to our near future: the Constitutional Court is almost certain to be the next staging ground in the fight over the Secrecy Bill. Recent pronouncements by the executive highlight the fear that policies decided by a government elected by the popular vote will be countermanded through the courts. And our president is not wrong when he says “Political battles must be fought on political platforms”. Those in the minority who simply don’t like a particular law will have to learn to live with it: that is the nature of democracy. But majorities in Parliament — here in South Africa and elsewhere — are not determinative of the constitutionality of laws made. Where there is concern for the legality or constitutionality of a law, courts must make the appropriate determination. And even to the ruling party it must appear that constitutional concerns regarding the Secrecy Bill are validly made, not merely an attempt the thwart the representatives of the democratic majority.
Members of Parliament are likely to refer the secrecy Bill, once signed by the president into law, to the Constitutional Court. But the president has an opportunity, long before that, to act as the head of all our country and not just of the ruling party and refer the Bill back to the National Assembly for reconsideration of its constitutionality or to refer it the Constitutional Court for determination of its constitutionality. In so doing he would realise the vision of our Constitution: of integrated but independent arms of government, acknowledging the special role preserved for our courts and the Constitutional Court in particular.
In many respects, the Constitutional Court is the bellwether of our democracy. It was the most significant new institution created at the time of our Constitution’s enactment. Our Constitution reaches back to our past, the inequitable legacies of which are still too much with us, in an attempt to address these but it also reaches forward to a promised, common future — most concretely realised by the Constitutional Court, which with its international stature, its resources seems almost an anomaly in our young democracy.
Interference with the Constitutional Court, implicit in the suggestion that its judgements and record are to be assessed, sets us back on the path to our constitutionally envisaged future. And the sleight of hand — the Cabinet’s talk of the need to “affirm the independence of the judiciary” through an assessment that cannot but create the impression that the independence of even our very highest court is at risk — undermines our intelligence. As if we, who have been fighting for democracy all our lives, would not know.
Dr Mamphela Ramphele is a struggle veteran, academic and businesswoman. She was a managing director at the World Bank and vice chancellor of UCT, and is the recipient of numerous awards.
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.