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An independent judiciary is a fundamental and inviolable tenet of our Constitutional framework. Similarlythe integrity of the independent institutions envisaged in Chapter Nine of our constitution must be beyond reproach in order to ensure the credibility and legitimacy of our democracy. True democrats nurture, cherish and support these. When they are undermined then an intolerant state is in the making with dire consequences for our democracy. Our judiciary enjoys immense public confidence and stature. We are fortunate as a country. We have appointed Chief Justices of incredibly high calibre and reputation including the incumbent Chief JusticeSandileNgcobo. However, there are signs that we may be beginning to falter.
Thereare fears that we are beginning to see the emergence of an attempt to constitute an executive led judiciary. These stem from a range of unrelated developments which when considered together create a worrisome picture. The Judicial Services Commission (JSC) must conduct itself in a manner thatinstills the confidence of citizens in the integrity of the process of appointing members of the judiciary. As an independent body it has an important role to create a healthy buffer between the various arms of the state, the citizens and the judiciary.
The JSC’s secretive settlement of the complaint by Constitutional Court Judges against Justice John Hlope for allegedly trying to lobby for an outcome favourable to JacobZuma in his corruption case creates a poor precedent. In some other cases of appointment to judicial office, whilst there may be no questioningthe calibre of the appointees raise suspicions about whether the appointments are in fact reward for judgments in favour of people in the positions of influence.
We believe that the President’s decision to extend the term of office of the Chief Justice is yet another development that stands to undermine the independence of the Judiciary. Notwithstanding our respect for the incumbent, we feel duty bound to challenge this decision in court.
The appointment of the former Acting Director of Public Prosecution MokotediMpshe as an Acting Judge in the North West Division is a case in point. This followed his decision to discontinue the prosecution of President Zumaon corruption charges. Are we entering an era of appointments to the bench as political reward rather than affirmation ofindependent minded legal eagles?
Integrity and impartiality of the prosecution services, the gateway to justice, has to be beyond question. It must prosecute without fear, favour or prejudice. Its politicisations and the erosion of its independence is another concern. Thismanifested itself with the dismissal of AdvVusiPikoli whose only crime was to honour his oath of office rather than to submit to political pressure. His successor’s appointment in the face of the findings of the Ginwala Enquiry about his lack of honesty and integrity and the subsequent recommendation of the Public Service Commission (PSC) that Minister of Justice institute disciplinary action against him tarnished the image of that office; worse still it showed disdain for the PSC. One of his first acts upon assuming office was to remove theprosecution team in the Kebble murder trial and replace them with one that had insufficient time to get on top of the case, resulting, as some argue, in Aglioti’s acquittal on charges of murder.
It can only be a lack of appreciation for the pivotal role of the Chapter Nine Institutions, such as the Human Rights Commission, Gender Commission, Public Protector and others that would account for a failure to implement or even consider the recommendations of the Kadar Asmal Report of three years ago which stood to strengthen the functioning of these bodies. There is a growing perception that they are being deliberately under resourced and loaded with loyalists rather than independent minded citizens with good standing whose primary duty is to uphold the Constitution.
With the term of office of members of the Independent Electoral Commission (IEC) due to expire this year, we must ensure that a credible process leading to similarly credible and independentminded people being appointed is in place. Otherwise the local government elections of 2011 maybe the last whose credibility is uncontested. Such is the importance of ensuring independence.
The isolation of the Public Protector, who has shown herself to be robustly independent must be seen in this context. She is clearly under tremendous pressure to play the game of recognising “political untouchables”. The lifting of the suspension of the intelligence officers that raided her office following a closed internal policeinvestigation is part of this pressure. So is the decision by the Minister of Justice to negotiate around her findings regarding the lease of police headquarters premises rather than to implement them swiftly.
In the 1980’s asan ANC activist in exile, I travelled the world giving accounts of conditions of torture in detention, killing of unarmed protestors by police in the period of my activism as a student leader and later a trade unionist in the period 1976 – 1982. I later worked for the International Defence and Aid Fund producing detailed reports for international bodies such as the organisation of African Unity, United Nations Commonwealth and others in the international anti-apartheid movement, documenting acts of police brutality, deaths in detention, extra-judicial murders, and the excessive use of lethal force against peaceful demonstrations. These exposés and thetestimonies of many others were among the things that persuaded the world community to act against apartheid South Africa.
The dawn of our new democracy marked a migration from the path that we trod. Even before we are over the shock of AndriesTatane’s brutal killing in protest march, a young learner is killed similarly. In 2010 according to The Centre for The Study of Violenceand Reconciliation there were 294 deaths in police custody, 612people were shot and killed by police in 2009 and566 in 2010.Reports of torture and abuse in police custody abound. We must question whether the gains of the dawn of democracy are not being reversed. We have the makings of a police force that is no different from that under apartheid.
The bellicose and ill-tempered language of both the Minister of Police and National Commissionerincites their actions and shows no regard for presumption of innocence, right to life, freedom of expression including right to peaceful protest as enshrined in ourconstitution.
Our security structures have become a playground for organised crime syndicates with some being compromised by bribes and inclusion in shady business deals. Add to this the obviously deteriorating administrative capacity of the State as evidenced by growing complaints of lack of service delivery.Legislativeproposals including the Protection of Information Bill areaffronts to the constitution suggesteither a lack of understanding of the supremacy of the constitution or reveal the paucity of skills to develop relevant policies for its advancement.
These developments are an attack on the democratic order and accountable transparent governance as envisaged by the constitution.