Cabinet ignites court debate: Why you should worry

2011-11-26 19:13

Former Constitutional Court Judge Johann Kriegler says he finds it “sinister” that the Cabinet is planning to appoint an outside body to assess the “track record” of the court.

Cabinet spokesperson Jimmy Manyi announced this week that the executive had agreed to appoint a “reputable research institution” to assess the decisions of the Constitutional Court “to ­establish how it has impacted on the lives of ordinary citizens”.

Justice Minister Jeff Radebe will this week release more details about the “assessment”.

Kriegler berated the lack of clarity in Manyi’s statement.

“The Constitution says nothing about transforming the judiciary in terms of non-racialism, gender, disability or ‘other transformation variables’. I don’t know what is envisaged.”

According to Kriegler the Constitution prescribes to judges to do their work “impartially, independently, according to their own conscience, without fear, favour or prejudice. None of it talks of transformation.”

In terms of the appointment of judges, the Judicial Service Commission (JSC) should look at the ethnic and gender composition of society “as a factor to be weighed in deciding if people chosen are fit and proper persons”.

“But the primary criterion is to select people that can promote a judiciary that is efficient, independent, competent, transparent and accessible?.?.?.?That’s why I’m worried – the emphasis may be in the wrong place,” said Kriegler.

“We are not on a platform in Polokwane. We are not talking politics. We are talking state policy. We are supposed to have our feet on the ground and our heads clear. This seems to be emotive language with the emphasis on one aspect (transformation) to the exclusion of all other aspects.”

Kriegler further questioned how the research institution would assess the Constitutional Court’s more than 400 judgments delivered since 1995.

“How do you pass and how do you fail? What are the criteria? What are they looking for? Who are these people?”

Radebe’s spokesperson Tlali Tlali said yesterday the court’s judgments “cannot be discounted or ignored. The court’s role is ­significant in many ways and in areas that relate to the development of sound jurisprudence, law reform and transformation of our legal system.”

Kriegler says he fails to see the link between the three things the assessment would consider.

“You assess the Constitutional Court’s work to affirm the independence of the executive and the legislature. Are you saying you have to look and see to what extent the judges have trespassed on the legitimate terrain of the other two pillars of state? If that isn’t what you’re talking about, what the hell are you talking about?” he asked.

It wasn’t the judiciary’s function to impact on the lives of people, Kriegler said.

“The judiciary can only interpret the law and the Constitution.”

He says complaints of interference started in 2002 when the late health minister Manto Tshabalala-Msimang accused the court of meddling.

“This was after we said stop letting babies die and give them Nevirapine.”

The court has been “at pains” over the years not to prescribe to the executive how they should implement the court’s decisions, Kriegler says.

Academic Mamphela Ramphele also criticised the announcement. “Cabinet’s crosshairs are firmly pointed at the judiciary’s independence,” she said.

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