Unjust chief justice saga

2011-09-03 20:35

The witch-hunt and the ­expressions of outrage at Justice Mogoeng Mogoeng’s nomination as the country’s next chief justice appear ­opportunistic since these issues should have been raised when Mogoeng was appointed as a Constitutional Court judge.

If those who have rushed to lambast Mogoeng as a poor choice are to be believed, perhaps the question they should answer is: why is Mogoeng on the Constitutional Court bench?

Why should a sitting Constitutional Court judge be a controversial choice for the position of chief justice?

Their silence and failure to object with the same zeal when Mogoeng was appointed to the Constitutional Court raises serious questions about their motives.

Why would Mogoeng serve the Constitutional Court if he is not fit and proper?

If those that charge that he is not fit and proper to be chief justice are to be believed, it begs the following question: who else on the Constitutional Court is unsuitable?

Surely his suitability should have been assessed by the Judicial Service Commission (JSC) before he was appointed as a Constitutional Court judge way back in 2009.

These interest groups that are ­suddenly revisiting old files and dusting them off should have done so in 2009.

Moreover, Mogoeng would have been ­interviewed by the JSC before he became a judge, and again when he became judge president.

Given the ferocity of the attack and the litany of issues that have been raised, one has to ask if other judges of the Constitutional Court would face similar problems if they were up for the role of chief justice.

If so, then the JSC and President Jacob Zuma have failed our democracy by ­approving appointments that did not pass the test and did not meet the standards required.

The question that needs to be answered more fully is what is envisaged in the “consultations” with the JSC and parties represented in Parliament once the president of the country has made his choice of chief justice.

Even if Mogoeng’s confirmation as the next chief justice proceeds in line with the wishes of President Zuma, the question now has to be asked if he will be able to lead the court or only lead minority decisions.

This would mean that the chief justice would be clearly alienated from the majority of his colleagues.

Of course, it is not unknown for a chief justice to be part of a minority decision, but in this instance such a pattern would have the potential to paralyse the court for as long as Mogoeng did not enjoy support inside the court.

The composition of the Constitutional Court is always changing.

Given that the length of service of the justices is prescribed, it is impossible to know what the make-up of the court will be like when justices such as Dikgang Moseneke, Zak Yacoob and those who reach the limit of their term vacate the bench. It may well be that the new justices would support Mogoeng.

One of the main charges against Mogoeng is his alleged conservative decisions. Those that privilege the liberal reading of the Constitution ignore the fact that even the “world’s best Constitution” is open to a range of interpretations.

While it’s ­understandable that interest groups will push for candidates that they believe represent their interests, it is mischievous to suggest that our Constitution can only be interpreted within a narrow liberal framework.

Mogoeng’s supposed conservative views are not at odds with the Constitution just because they are not liberal.

One of the other charges against Mogoeng has been his relative youth. This is one of the most frivolous.

Mogoeng already has experience as a judge president in the North West Division and has ­experience in leading a court.

South Africa has made a name for itself by thrusting seemingly young, even inexperienced, individuals into positions that are much more demanding and complex.

Let’s not ignore that the upside is that if Mogoeng becomes the next chief justice, he will be in the position for about 10 years, which may be good for consistency.

Once the Mogoeng saga is resolved, it will hopefully provide a valuable lesson for establishing certainty regarding the appointment of an official whose role is central to the functioning of our ­constitutional democracy.

At the moment, section 13 of the Constitution states simply that the president has the constitutional prerogative, after ­consultation with the JSC and leaders of parties represented in Parliament, to appoint a chief justice and the deputy chief justice. But it is clear that, in this instance, this process has not gone smoothly.

Civil society groups, dissenting individuals and other advocacy groups have jumped into the fray, letting it be known that their preferred candidate is Moseneke or Sisi Khampepe. But is it difficult to see how their attempt to go against the president’s choice is anything other than an expression of their frustration.

Some have suggested that a more “open” process of nominating candidates for chief justice should be followed, culminating in a grand interview by the JSC. While this could potentially avoid the Mogoeng controversy, it would ignore the fact that those serving the highest court in the land should be in a position to serve as chief justice.

If there are any judicial skeletons ­lurking in the closets of the justices that serve on the Constitutional Court, these demonstrate the inadequacy of the ­confirmation hearings that the justices face ­prior to appointment.

It is true that South Africa is still going through its founding stages as a new ­democracy, but that does not excuse the obvious lapse of those who now question Mogoeng’s judicial suitability.

Ever since Mogoeng was announced by the president as his choice for chief justice, virtually everything – including the proverbial kitchen sink – has been thrown at the judge. But when you look at each of the charges levelled against Mogoeng, not one of them refers specifically to his ability to lead the Constitutional Court.

In any case, no one has spelled out what qualities and attributes Mogoeng lacks to become chief justice. Given that South ­Africa has had a chief justice without prior experience as a judge, let us not apply ­different standards to Mogoeng.

It is when these organisations that now raise their voices loudly fail to perform their oversight functions and bring to the attention of the JSC any concerns they may have had that the ugly Mogoeng saga is likely to ensue.

It seems perverse to subject Mogoeng to a new round of JSC hearings after he already faced the JSC in 2009.

The JSC found him fit and proper to sit as a judge, and it seems that this new level of scrutiny is political rather than judicial.

It is ­regrettable that this process really looks like it has become a way of undermining President Zuma.

 

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