Sliding to judicial despotism

2011-08-31 00:00

WHEN the founding fathers of our constitutional democracy played midwives to the birth of a new society, they created a number of checks and balances to ensure that all branches of government work in unison.

Central to this was the principle of the separation of powers, meaning that government’s functions and powers were split between the legislature, judiciary and the executive. This was to ensure that none of these spheres abuses its power. The founding fathers also thought it wise that a constitutional court be created and act as the final arbiter on matters where the constitutionality of an issue is in dispute.

The debate around the distribution of powers between the three branches and which division of government should hold sway over others is as old as democracy itself.

It is generally accepted that the tension between the three branches of government testify to the robustness of that democracy. While acknowledging this reality, it is worrying that an incipient trend is emerging, where every political decision must be tested in court.

It has become fashionable for those who have lost political battles in a fair contest to resort to using courts in an attempt to impose their political hegemony on the rest of society. In South Africa today a motley crew of forces have taken it upon themselves, each time this government takes a decision, to hotfoot it to the nearest court in an attempt to reverse that decision.

A case in point is the furore which erupted after President Jacob Zuma used a section in the law to extend the tenure of the outgoing Judge President, Judge Sandile Ngcobo. It did not matter that that section of the law had been used before by Zuma’s predecessor. Whose interests does this serve?

A chorus of dissension erupted after Zuma nominated Judge Mogoeng Mogoeng to succeed Ngcob­o. Interestingly, an assortment of reasons have been given as proof of why he is not experienced enough to be the judge president. This is in spite of the fact that the Constitution makes it clear that the president is not limited to appointing judges to the position. In fact, the first two judge presidents were not even judges when they were appointed to the Constitutional Court.

The courts should not be used as tools to remove the people’s power by stealth. If we weaken the public trust in one of the key levers of power in our constitutional state we will slowly chip away at the democratic project itself.

If every decision made by the government is going to be challenged in court, this could create a state of paralysis where all government decisions have to be given a stamp of approval by the courts. The concept of separation of powers will be undermined because one arm of government, in this case the judiciary, will be the alpha and omega of how the other arms of the government should operate.

If every decision taken by Parliament is subject to the endorsement of the courts this not only undermines the concept of the separation of powers, but may give rise to the perception that the legislature is the pawn of the courts. And so will be the executive. More importantly, it might create a perception, real or imagined, that democracy is worthless when those who have been elected by the majority of the people have to take their orders from the judges each time they have to make a decision.

Those who abuse courts by rushing to them to fight self-serving political battles are not only undermining a critical pillar of our democracy, but are creating a dangerous perception that South Africa is fast sliding towards judicial despotism.

• Michael Mabuyakhulu is the KZN MEC for Economic Development and Tourism. He writes in his personal capacity.

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