The rights in the Bill of Rights are not self-enforcing: they depend on a network of institutions created or supported by the Constitution. Without robust and independent institutions, these rights are likely to fail.
A disturbing feature of recent years has been the undermining of those institutions. We have had too many appointments in which a key qualification seems to be a willingness to protect those in power or loyal to a particular faction.
One of the most important institutions in our legal system is the prosecution service. It is the arm through which the state exercises much of its coercive power. Independence, integrity and competence are critical.
Section 179 (4) of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
Independence is a constitutional requirement, and it is guaranteed. Section 9 (1) (b) of the National Prosecuting Authority Act states that the national director, deputy national director or director of public prosecutions must “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity”.
We know the sorry tale of the firing of Vusi Pikoli, the appointment of Menzi Simelane, the removal of Simelane by order of court, and the shambles that has followed. The Supreme Court of Appeal (SCA) recently spoke in harsh terms of the conduct of the then acting national director of public prosecutions (NDPP), Nomcobo Jiba, in the interlocutory litigation on the review of the decision not to prosecute Jacob Zuma in 2009.
A dispute arose as to what materials the NDPP was obliged to disclose to the applicant. The SCA described Jiba’s conduct as follows:
“[She] provided an ‘opposing’ affidavit in generalised, hearsay and almost meaningless terms … it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality or otherwise, of documents and other materials in its possession, particularly in the face of an order of this court.
“Its lack of interest in being of assistance to either the high court or this court is baffling … This conduct is not worthy of the office of NDPP. [It] undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country.”
It must be heartbreaking for the many people of competence, independence and integrity in the National Prosecuting Authority to watch its leadership dissolve in political, factional dispute and intrigue. This undermines the Constitution.
The constitutional requirement of independence should not be seen as in conflict with the constitutional principle of accountability of public power. In a paper for the Institute of Security Studies, Martin Schönteich writes: “Prosecutorial authorities must be sufficiently independent from external influence to permit the fair and impartial application of the law and prosecution policy. Yet prosecutors should be sufficiently transparent and accountable to the public to help ensure that prosecutorial authority is not abused.”
One has to wonder whether we will achieve either of these goals for as long as the person who appoints the NDPP has a direct and personal interest in the decisions made by the appointee.
I am not one of those who believe appointments should be made as if political views and commitments are irrelevant. In key positions, technical skill is not enough. It is legitimate to enquire whether candidates are committed to the transformative project of the Constitution and have demonstrated that commitment by word and deed.
It is legitimate to disqualify them if they are not able to show that this is the case. So this is not a plea for “neutrality”. To the contrary, it is a plea for commitment, but a commitment to the constitutional project, not a commitment to particular office bearers or factions.
Our first Constitutional Court was of a stellar quality. A demonstrated commitment to human rights was a prerequisite for appointment. That was entirely appropriate under a Constitution in which a commitment to human rights suffuses its founding values.
Does the Judicial Service Commission still regard this as a qualification for appointment to judicial office? There is reason to suspect not.
One member of the commission, Deputy Minister of Home Affairs Fatima Chohan, appears to regard a strong commitment to human rights as at best suspicious, and at worst a disqualifying feature.
In the most recent (April 2014) interviews, she said she found it “a bit disturbing” that some candidates “espous[ed] very vehement human rights activist tendencies”. This demonstrates a failure to understand that the rights in the Constitution are at the heart of its transformative project. These rights can be enforced against the state and private parties. They can also be used to defend government action in support of transformation.
I cannot restrain myself from noting that Chohan’s department is notorious for repeatedly callous disregard of human rights, particularly those of refugees. One can see why she would not want human-rights-minded judges examining the lawfulness of her department’s deeds.
To its credit, the parliamentary portfolio committee last week noted that the recent Samotse judgment “brings to three the number of rulings against the department by a court of law and a chapter nine institution within the past few weeks. It is concerning that all three judgments point to an incessant breach of the Constitution by the department.”
On Friday (September 26) there was a further such judgment. The list of important institutions that have been undermined is dispiriting.
The attacks on the public protector, for doing her job, are a disgrace. One waits to hear someone in authority say that, and say so clearly.
We all know corruption is a threat to our democracy. A prerequisite for dealing with corruption is the political will to do so. Bertrand de Speville of the Independent Commission Against Corruption in Hong Kong, who, with the support of the Hong Kong government, turned around the corruption situation, says:
“… [A]s our leaders contemplate the realities of effective action, they themselves may feel their anti-corruption fervour fading. The thought that such action may affect political allies and colleagues, perhaps even friends and family, has a dampening effect … The political will to defeat corruption is liable to be undermined by those in positions of influence who could be adversely affected by effective action against the problem.”
He proposes creating independent institutions to investigate corruption, and then drawing a line under the past, declaring that matters occurring before the date of the new law will not be investigated.
This worked in Hong Kong, but it flies in the face of South Africa’s “truth and reconciliation” approach. It would be a bitter pill to swallow. Yet it may well be the only cure for the cancer of corruption.
Unless we take that medicine, we risk being destroyed. If we cling to a principle we cannot actually implement, namely full accountability for all past acts of corruption, we may be unable to deal with the matter at all.
South Africa in 1994 was not a promising place for constitutional democracy. Almost none of the population, the judiciary or the legal profession had any experience of it. We had to learn while the system was being constructed. The achievements of the past 20 years are remarkable, and we do ourselves a disservice if we fail to recognise that.
But this is no basis for complacency. I do not think it is alarmist to say we are now in the midst of a struggle about whether we will remain a genuine constitutional democracy.
Key institutions of state have been weakened. Attempts are being made to capture and use state institutions for anti-constitutional purposes (such as the factional intrigue in state intelligence). There is an “emerging trend towards security-statist approaches to governance”, as the Right2Know campaign puts it.
In critical areas, Parliament is failing to perform its constitutional function of oversight of the executive, preferring to protect those in power.
This is no time for complacency, but it is also not a time for panic: our task is to ensure that the Constitution does its job.
Ultimately, the best protection for the Constitution is the recognition by South Africans that it – and the rights it contains – are a vital means of building a society in which all can live in dignity.
Geoff Budlender SC is a member of the Cape Bar. This is an excerpt from the annual human rights lecture at the faculty of law, University of Stellenbosch, which he delivered this week.