Can our Constitution handle it?

2009-08-29 13:38

We do not need any further doubt.

BY announcing his choice for the position of chief justice, President Jacob

Zuma has set the cat among the pigeons. Word is that some political parties have

threatened to take the dispute to court if the president does not appoint their

preferred candidate, in which case the dispute may very well end up in the

Constitutional Court.

This, I fear, is what will get our constitutional democracy into serious

trouble.

On a small scale, the case will come before and be adjudicated by a forum on

which Justice Sandile Ngcobo and the incumbent Deputy Chief Justice Dikgang

Moseneke – said to be favoured by the majority of opposition parties – sit. Both

are excellent jurists and have served South Africa well. Choosing between them

is an impossible task.

Opposition parties’ head-to-head comparison of the two is unhelpful and an

unwelcome distraction from what should be a robust debate about the court’s

legacy – jurisprudential and otherwise – since its inception in 1994.

On a grand scale, the issue raises a question that can only be summed up with

the phrase, quis custodiet ipsos custodes? (who will guard the guards

themselves?), posed by the Roman poet and satirist Juvenal many centuries ago.

The dispute between Judge President John Hlophe and most judges of the

Constitutional Court cannot be said to have done our constitutional democracy

any good.

Clearly, dragged to the bitter end, it would have brought all pillars

plummeting to the ground. It appeared unseemly that a court revered worldwide

for its progressive judgments should be engaged as a litigant – and referee – in

an internecine war with one of the country’s most senior judges.

The dispute over Zuma’s nomination of Justice Ngcobo is even more

worrying.

The constitution provides that the president, after consulting the Judicial

Service Commission and the leaders of parties represented in the National

Assembly, appoints the chief justice. What constitutes consultation is no doubt

going to be the subject of fierce politicking, and a protracted legal debate.

This matter should not be entertained lightly.

What is clear though is that the president’s nomination of Justice Ngcobo is

not tantamount to an appointment. A valid appointment is preceded by some form

of engagement between the president and political parties in Parliament.

Barring his confessed absent-minded slip of the word “appointment”, it is

clear that what was intended to be conveyed was the president’s preference for

the position.

Whether or not he is permitted to have a preference may again be debated in

the courts. It is hard though to contest the view that this is a constitutional

issue that raises novel jurisprudential points.

The powers of the Constitutional Court are overarching. It is the only court

that can make the final decision whether a parliamentary act or presidential

conduct is constitutional. Issues involving the interpretation, protection or

enforcement of the constitution – in our constitutional scheme of things – come

only with that court’s imprimatur.

Whether or not the president failed to consult is precisely such an issue.

It is of course not a given that justices Ngcobo and Moseneke themselves will

hear the matter. To avoid any perception of bias, they may consider it prudent

to recuse themselves. The constitution stipulates that a matter before the

Constitutional Court must be heard by at least eight judges who sit en banc (as

a collective).

In the courts, a decision will ultimately amount to whether the president

erred or not.

Whoever finally emerges as the chief justice will firstly face the herculean

task of clearing clouds of lingering confusion and suspicion.

We do not need any further doubt in our judiciary. There are just too many

fights and too much mudslinging for our constitutional architecture to survive

unscathed. Too many knocks to the constitutional pillars may lead to the erosion

of public confidence in constitutional democracy.

  • Mapheto is an attorney and constitutional law analyst based in Johannesburg


 

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