Are we sure we want ConCourt playing big daddy to Parly?

2017-04-13 11:32

Those that are proponents of President Jacob Zuma's genius as purported, would struggle to convince the world, how the genius given power to the courts during his tenure. In fact it almost comes to a point that the general power of the Presidency and of the legislative houses has suffered. Most of his decisions and appointments have been placed under judicial scrutiny and have come short.

Of course those opposed to his genius will point out that, you can't appoint a head at the NPA with a murder charge or with a history of conflict with the institution. And that its ineptitude that has empowered the courts over the lack of political oversight by the Presidency.

Before I get a lecture of constitutional republics and their basic formation, let's create a common definition as a reference point. A constitutional republic is a type of government in which the officials are elected by the people. The republic must govern according to the laws of the Constitution, and its actions are subject to judicial review. So judicial review is inherent on the quality of government decisions.

This is where I have a reservation. The UDM application to the Constitutional court is to review not a decision of Parliament but a procedure. I believe in the pursuit to unseat the President we are asking the court to ski through a grey area but create a telling precedent. Effectively parliamentarians are asking the ConCourt to referee between them running their processes. I am not a constitutional President but perceive the following to be in question:

The court becoming an equaliser in parliamentary procedures undermines the voting process, to which we still struggling to get 5 to 10 million South Africans to participate. So the power given; whether we believe by a voting fodder or loyal constituency to the ANC would now be offset by this court decision. This could open a new era that technically would mean outright majority means nothing if its ultimately a court decision.

President Zuma might be the subject of changing procedure today, but if the same process fails another good leader in the future would it be worth it. Effectively if a coalition of all parties were able to get a President appointed by 5 sits. The same can be bought to reverse decisions or indict the elected president through corrupt means and we won't know who are the corrupt MPs.

Who is the respondent in this case? Is the motion by UDM reflective of the wishes of all parties or in this case all opposition? I am keen to the understand if all parties are happy with this direction? This is for perhaps one reason, the same voices have protected parliamentary procedure when soldiers and police officers were in General Assembly on the notion that they threatened the autonomy of the house. Surely this is the same.

On the early part of the previous idea, on who is the respondent? Can the general assembly also consider procedural affairs of the judiciary without threatening the courts autonomy? Thus are we not preparing a situation where what good for the goose is also good for the gander!

This will ultimately be the legacy of the Jacob Zuma's presidency. Clarification and more empowerment of institutions such as the Public Protector, Judicial Counsel and opposition politics. To how his genius or lack of it achieved it, will remain a conundrum. However may I implore a pays before a new precedence like this is created.

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