Who will protect us?

2011-08-31 00:00

BY nominating Constitutional Court judge Mogoeng Mogoeng for the position of Chief Justice in South Africa, President Jacob Zuma has for the second time overlooked the most suitable judge for this very important office, Deputy Chief Justice Dikgang Moseneke. Moseneke is a brilliant jurist and a very experienced judge of the Constitutional Court, while Mogoeng has limited experience in the Constitutional Court and is not known as a distinguished jurist.

Zuma appears to be trying in a blatant manner to manipulate the judiciary by proposing Mogoeng for this high office.

The independence of the judiciary is an indispensable requirement for a democratic state. The reason for this is obvious since if judges can be influenced by politicians or by any other interest group, there is very little chance that the courts will be able to be an effective mechanism for the prevention of the abuse of power and the upholding of the principles and values set out in the Constitution and the Bill of Rights. Judicial independence flows from the doctrine of separation of powers which is the institutional basis for a liberal and democratic state. In accordance with this doctrine, the courts are subject only to the law and the Constitution, and no other person or institution may interfere with the functioning of the courts.

The independence of the judiciary is entrenched in the South African Constitution, which contains both a general provision that guarantees the principles of judicial independence and non-interference by other state organs, and several specific provisions relating to security of tenure, appointment, salaries, removal and the terms of office, of judges.

In our constitutional history, the independence of the judiciary has been threatened and undermined from time to time. The most infamous example occurred in the fifties in relation to the politically contentious removal of the coloured voters of the Cape from the common voters’ roll.

Section 165 of the Constitution endeavours to prevent such a situation from arising again. It states that “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. It declares further that organs of state must assist and protect the courts to ensure their independence, dignity, accessibility and effectiveness.

It is therefore a matter of profound consternation that the ANC government and Zuma are attempting without guile to manipulate the independence and competence of the highest court in the land to ensure a compliant executive-minded judiciary by endeavouring to appoint Mogoeng as chief justice.

This could have serious and unpredictable consequences for South Africa. What is at stake are the rights and values enshrined in our Bill of Rights that need to be protected and promoted by an independent and competent judiciary.

• George Devenish is a senior research associate and a former professor of public law at the University of KwaZulu-Natal (Durban) and one of the scholars who assisted in drafting the Interim Constitution in 1993.

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