Ralph Mathekga

When the courts have to babysit government

2017-05-08 08:11
Constitutional court. (News24)

Constitutional court. (News24)

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The relationship between the judiciary and the executive branches of government in South Africa is becoming tense.

Recently, the judiciary has had to intervene with the use of the executive power because the latter seems to be abusing its privilege to implement policy.  

In recent months, the courts have had to say no to President Jacob Zuma’s executive on numerous occasions. Recent examples include the court having to intervene with government’s intention to procure the nuclear deal. In another case the court asked President Zuma to explain the Cabinet reshuffle during which Pravin Gordhan was shown the door from Treasury.

In all these cases, the court raised questions about the soundness of decisions made by President Zuma as the head of the executive. Never before had the judiciary stepped so far into the terrain of the executive.

There is nothing fundamentally wrong with tension existing between the executive and the judiciary branches of government. More often, the executive stretches its prerogative to implement public policy and finds itself unduly encroaching on individual liberties, denying people the right to determine some of the conditions under which they would like to live. In such circumstances, people would approach the courts and ask for a review of the conduct of the executive.

Such squabbles are the life and breath of democracy, and they usually involve attempts by government to contribute to the welfare of the people. People then go to the courts to ask for a review as to whether government is overreaching and overstepping its boundary.

The squabbles between the executive and the judiciary in South Africa, however, seem not to involve how to extend the welfare of the people. In South Africa, the judiciary has become the last line of defense when it comes to stopping the executive from looting state resources.

This is when the courts say no to the nuclear deal because it seems to be in the interests of the few. Or when the courts ask for an explanation of a Cabinet reshuffle because there is a compelling rumour that refuses to go away that says the president is a puppet of the Gupta family, therefore could be acting in their interest.

The sad part about this tension between the two branches of government is that it is not about philosophical differences regarding the extent to which the state’s policy should be allowed to encroach upon individual liberties. It is not the squabble about the executive having adopted a potentially unconstitutional ideological position on a policy matter. We are just not there yet. For us, it’s about the basics: It’s a matter of whether a contract entered into by government is another attempt to line the pockets of a few.

This is a lost opportunity for us as a nation to engage in a meaningful conversation regarding how constitutionalism at times curtails popular democracy, or the collective as in the majority.

At times I get tempted to weigh in and make my point to the effect that the courts in South Africa should refrain from excessively interfering with the exercise of executive power. The dilemma I run into then is that my position will inadvertently defend the executive which has excessively indulged in power.

Under these conditions where the executive often acts in the interests of the few, it becomes the judiciary’s job to babysit the executive. Therefore the DA and others are within their rights to activate the judiciary by running to court whenever the executive twitches a finger.

This is another cost that comes with having an executive branch of government that has legitimacy challenges; it opens an opportunity for calling upon the judiciary to evaluate each and every decision made by the executive. This ultimately delays policy implementation.

Finally, the executive would blame the judiciary for slow policy implementation by government. This then becomes a perfect chicken and egg scenario; a complete waste of time.  

- Ralph Mathekga is an independent political analyst and author of the book When Zuma Goes. He writes a weekly column for News24.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    judiciary  |  courts
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