Judicial overreach and desperate citizens: What is to be done?

2017-05-29 15:01

It is becoming increasingly clear that we are mired in a cesspool of corruption. At the same time, the majority party is battling to come to terms with the fact that the people (including most of their supporters) are thoroughly disgusted with their politicians. Things appear to be getting worse, but this is largely because more people are ‘spilling the beans’, while trying to proclaim their own ‘innocence’.

Most voters, having supported the ruling party as the historical leader of the struggle to liberate our country, find themselves increasingly confused and lost. “Surely this cannot be true of our leaders – of our party?”

Despite commendable attempts by the opposition parties to hold government to account, at this point most voters find themselves without a leadership that they can turn to; that they can trust. This has led to more and more people ‘giving up’ on our electoral system and retreating from any kind of involvement in government or voting. This is a dangerous state of affairs and basically leaves the stage to those who are actively engaged in capturing and stealing as much as they can.

What alternatives do we have?

During this turbulent period, the courts have come to play an important role in holding various politicians and civil servants to account. Mass marches, civil society investigations, reports by the public protector, court actions and open letters to the powers that be, have all become a frequent occurrence, in the attempt to hold the authorities accountable. Various court actions have forced politicians to acknowledge, in most cases reluctantly, that we are a constitutional democracy whose government’s actions are subject to scrutiny – to determine if they accord with our fundamental law – our Constitution. These actions have led to debates about the appropriate role of the courts – and the need to distinguish between the roles of the executive, the legislature and the judiciary.

What has happened to the ability to hold those in power accountable?

The liberation struggle succeeded because it managed to mobilise large numbers of ordinary people to fight for their rights. Those involved worked very hard to get everyone to feel that they had the right to stand up for themselves, to make sure that those in power were answerable for their actions, to fight for the right to be heard and to demand accountability from those in authority.

Why have we allowed this to be taken away from us?

The creation of our new democracy, based on a widely-acclaimed Constitution, has clearly had some negative effects. Most citizens have been relegated to the status of ‘observers’ within our democracy – to be wheeled out once every 5 years to vote for those they believe in – and then leave the elected politicians to do as they see fit (in our ‘best interests’ of course). The huge upsurge in service delivery protests is testament to the fact that this eventually becomes unworkable. As a result, outbursts of anger, and sometimes violence, break out all over the place.

Mass marches that protest the actions of government are one way to make their voices heard. These actions will have to continue, and to intensify, if those in power are to be made accountable to the people of this country. The activities of unions, church groups, community organisations, NGOs, youth groups, sports clubs and any other body that brings together citizens, need to intensify – and to spend some of their time and energy focusing on what the rulers are doing – and what they want them to do. The many mechanisms that have proven effective in raising important issues need to be re-vitalised to make the voices of ordinary people heard and to contribute to holding the authorities accountable. In this context, let us return to a consideration of the role of the courts in all this.

How does the ‘separation of powers’ work?

The MPs in the legislature are elected by the voters – and their job is to make the policies that direct our society. The majority party in the legislature elects the president, who heads the executive; together with those he appoints to be part of his Cabinet. These Cabinet ministers are the political heads of the departments, whose civil servants run the various arms of government. The legislature is meant to hold the executive to account – to make sure that they do what the voters elected them to do.  

Unfortunately, it does not always work that way in practice, as political parties tend to run from the top down.

Ordinary MPs tend to take direction from those at the top – with the Cabinet ministers and the president (the executive) sitting on top of the heap. This makes it virtually impossible for the legislature (the elected MPs) to hold the executive accountable – as they tend to take direction from them, rather than question anything they do. 

It is not their job to make political policy, or to determine how that policy is carried out in practice. It is their job to ensure that each of these other organs of government (the executive and the legislature) carry out their jobs in accord with the fundamental law – the Constitution – which contains the Bill of Rights. This includes the job of scrutinising the actions of any civil servant or organ of government, to ensure that such actions accord with the ‘rules’ set out in our fundamental law – in the Constitution.

As such, even though it is not the job of the judiciary to make policy – or to determine how this policy will be carried out in practice – they are the ultimate arbiter when any citizen wants to challenge such actions, to determine whether they are actually in accord with our Constitution.

What does this mean for ordinary citizens who feel betrayed by the people they elected?

Governments in a democracy are meant to be accountable to those who elect them. They are also meant to rule in the interests of all the people, and not just those who voted for them. That’s why we have secret ballots and why our Constitution sets out rules that determine how citizens can be protected, regardless of who they voted for. Many of these rules are to ensure that those who did not vote for the ruling party are protected – are not discriminated against.

What happens when even those who did vote for the ruling party feel that their representatives are not acting in the best interests of the society; that they are just working to ensure their own interests (economic and otherwise) are catered for?

The simple answer is to vote for someone else when the time comes – in three or four or five years’ time.  

What is the outcry about “judicial overreach” all about?

These concerns have been given prominence by people from the Youth Leagues of some political parties, in certain parts of the country. If we strip out all the jargon and emotion, this is a concern that an unelected group of judges are overriding the decisions of politicians (and the civil servants reporting to them) who were elected by most the voters in our country. This is often typified as an attempt ‘to win through the courts – what you lost through the ballot box’.

As must be obvious from the discussion above, this is misdirected in a number of ways. Elected officials (and the civil servants who report to them) are not elected to do whatever they think is best, when they are trying to carry out the policies advocated by their party. They are elected to do this within the confines of the basic law (or the Constitution) to ensure that they do not end up (inadvertently) destroying the fundamental values and principles upon which our democracy was built. These restraints are not there to force them to change their policies – just to ensure that the way they implement them is in accord with the core values enshrined in our democracy. It’s a little bit like the 10 commandments – they don’t spell out exactly what we should do – they just tell us what we should not do while getting on with our lives and our ambitions and our objectives in life.

The judiciary is not meant to be analogous to a bunch of elected individuals who are there to carry out the popular will of the people who elected them.  

The justices in the Constitutional Court are individuals who emerge from a carefully crafted system that tries to ensure that the best available candidates – from amongst those with the right skills and experience – are chosen to apply their skills to interpret/apply the basic law of the land. As mentioned above – their job is to ensure that the executive and the legislature carry out their jobs within the parameters set out in the Constitution.

Setting up these justices against the elected members of the legislature (or the executive) is misdirected and inappropriate.

Why the concern about “judicial overreach” from some academics and activists?

Our country has a very divided history and the divisions of the past often reach out to influence our current choices. This is inevitable and necessary – but it sometimes leads to absurd results.  Concern has been expressed about populist attempts to undermine our judiciary, whenever it acts to ‘reign-in’ our government. Even though the judgements may be accurate critiques of actions that contradict the Constitution and need to be corrected, lengthy court judgements are unlikely to be perused by the ordinary person. Most will rely on the interpretation of the politician – who may be upset with this correction and is trying to whip up support. This happens in many ways, usually by trying to malign the institution or the individuals involved. Little attention is focussed on the clearly incorrect policy being advocated – which has been shown to contradict our Constitution in some way.

Many are concerned to limit the damage that can be done by such attacks; damage that might lead to attempts to undermine the courts, to try and distort the judicial process. They argue that it may be strategically necessary to ‘tone down’ such judicial interventions, to try and circumvent such damaging reactions. Some would target the judges themselves and try to influence what they say – not because it is incorrect or inaccurate – but because it may be ‘politically inadvisable’. They argue that such judgements may stimulate adverse reactions by politicians who are clearly in the wrong – but who may be able to mobilise the masses against the courts – and as such, should be avoided wherever possible.

This is an attempt to counter illegitimate slander and negative appeals to populism, by pretending that the contradictions to our Constitution do not exist – in the hope that this may avert attacks on our courts and the Constitution itself. They are trying to preserve the Constitution and its institutions – by ignoring actions that are in direct conflict with the rules set up by that Constitution. This is being done in the hope that although ‘the time is not right for such court challenges’ – that we may ultimately be able to defend that Constitution and its precepts at some point in the future – when the time will be right? Does this make any sense? Surely such populist attacks on our Constitution and our courts should rather be met head on?

Others aim their criticisms at the individuals or NGOs or (opposition) political parties, who bring such cases to the courts.  

The argument is that these individuals or organisations are forcing the courts to rule on issues that will generate adverse reactions and as such – should rather be avoided. In the case of political parties – the argument is that they are trying to win in the courts – when they actually lost the battle at the ballot box – and that this is an illegitimate way of trying to undermine our democracy.

One such critique by an academic stated “the red line was crossed when they [the courts] were….asked to declare the recent Cabinet reshuffle irrational….These actions are as much a threat to constitutional democracy as the political behaviour they seek to counter.” That’s a very strong statement that goes on to argue that such court processes do not “enable democratic politics –  ... [they] reject.. it”.  

This contribution maintains that the president has the right to appoint whoever he wishes and no court has any business sticking its nose into the matter, and to do so would be to undermine democracy.

The court action that is being referred to, takes a different line. They argue that the president has a constitutional obligation to promote the best interests of the country and his actions are subject to the need to act rationally in the interests of the country. They seek to demonstrate that the past actions of this president open him up to accusations of acting in his personal (and even financial) interest and not in the interests of the country. If this can be demonstrated to the satisfaction of the court, they argue that this will open the president up to the charge that he is acting against his oath of office and in contradiction to his constitutional duties. This makes such actions (including the removal of recalcitrant Cabinet members in order to replace them with compliant ones) open to challenge as demonstrably contrary to his oath of office.  

This appears to be a very important matter to explore – especially in a situation where the sitting President has been accused of ‘handing over control of key state functions’ to one family to allow for his personal (and his family’s) economic gain.  

It is very hard to see how this will somehow undermine our democracy. Many ANC supporters who are horrified at the actions of this president are applauding attempts to hold such individuals accountable for their actions. The voting majority (the ANC supporters) are just as helpless in such situations as the voting minority and (although this is not of direct relevance to the legitimacy of such court actions) they would most certainly support such attempts. 

Is this undermining our democracy or is this a way of limiting the discretion of individuals who seize the legitimate powers they have been afforded, and distort them to further their own interests – thereby directly contradicting the basic law – the Constitution? If so, it surely makes sense to hold them accountable for such distortions?

The sad reality is that no democratic system is impervious to attempts to pervert it to further the interests of individuals who are determined to push the limits to benefit themselves – while working against the interests of those who trusted them and put them into office. The only thing that can reign in such attempts to undermine the very fabric of our democracy – is the refusal by ordinary people to allow such things to happen. This can only happen by mobilising every member of society to take back (some of) the power that was delegated to our elected representatives; to make it clear that they are still answerable to the people and to make this clear using whatever actions are available to us and using whatever fora we find ourselves in – be that in the courts, on the streets, in our places of worship, on our sports fields or at our social events.  

It is only an active citizenry that will ultimately provide the safeguards we need to protect our democracy. We can no longer afford to vote once every few years and then just leave the country to the politicians.

- Mike Roussos was a trade unionist with various unions during the anti-apartheid struggle. He has been the CEO of a number of companies, ranging from IT to legal insurance to metal manufacturing. He has worked for government as a consultant and as a Head of Department.

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