Governments can pose a threat to the judiciary, and judges should even be willing to die for the ideal of an independent judiciary and rule of law, Chief Justice Mogoeng Mogoeng told judges from across Africa.
He was opening the fourth congress of the Conference of Constitutional Jurisdictions of Africa in Cape Town.
The theme for this year’s congress is “The promotion of an independent judiciary and the rule of law”.
Mogoeng referred to judges in Ghana, who were killed because they had integrity and would not bow to pressure.
Three high court judges, plus an army officer, were murdered on June 30 1982. The perpetrators have not been brought to book, and their motive remains unknown, but every year, the Ghana Bar Association holds a memorial service in their honour.
“So when you become a judge you know that there are risks. But remember that most of the African countries are free because people have died. So if you have to die for the sake of the many, so be it rather than corrupt yourself and live with a guilty conscience because you are unprincipled and people have to suffer because you pretend to be a judge when in fact you are a puppet.”
He referred to American judge Oliver Wendell Holmes Jr, who was appointed to the United States Supreme Court by his friend, President Theodore Roosevelt, in 1902. Roosevelt expected the friendship to work to his advantage. But Holmes later ruled against Roosevelt in an important case.
Roosevelt expected Holmes to oppose the “big railroad men and other members of large corporations”. But in the railroad monopoly case of Northern Securities Company versus the United States, Holmes found for the railroads – infuriating Roosevelt.
Mogoeng said Holmes “preferred judicial independence, integrity and character over the favours that politicians might dish out to those who are weak and prepared to have the system corrupted.”
When Mogoeng was appointed as chief justice of South Africa, he was chalked up as a “Zuma man”.
He has since come out as an unapologetic fighter for the rule of law and the independence of the judiciary.
Mogoeng said governments usually praise the judiciary when they win cases and do the opposite when decisions are made against them.
“Our independence requires that we be alive to it possibly being compromised by foreign interests, war lords and modern day dictators.”
He said the judiciary was a critical component of any genuine democracy as opposed to a fake democracy or mobocracy.
“Integrity is what defines us.”
Mogoeng said: “Corruption will be perpetrated in your country, you will have one opportunity after the other to say no, as is your responsibility as the judiciary – but because you are hungry for power, for prestige and positions and even money, you will forget about the suffering of the millions of people in Africa suffering from poor education and health and abject poverty Africa has been characterised by.”
Mogoeng said the way judges were appointed would have to be examined.
“It cannot be that a politician can just wake up one day and say I like that one. There must be systems in place to authenticate the suitability of those assuming judicial office, their competence must be tested and we need to look at the renewability of terms of office of judges.”
Judges also needed to be paid properly, he said.
“We will have to look at any other aspects relevant to ensuring that the possibility of being beholden to other players in the state or outside is reduced.”