The Implications of Attacks on the Judiciary on Political Accountability in South Africa

By: Adefemi A. Obalade

Accountability refers to the acceptance and assumption of responsibility for one’s deeds and conducts, and the concomitant outcomes or consequences. The subject of accountability cannot be overemphasised given that the action of the political officeholder has a great effect on the wellbeing of the citizens, nation’s economic prosperity and international outlook, and success of the political parties they represent, among others.  Elected representatives such as the parliament’s members and presidency are expected to act in the best interest of the people of South Africa, and hence must be held accountable.

South Africa has been faced with the untold incidence of accountability crises. This is evidenced by rising incidents of corruption. Notable among these are: The arms deal scandals; state capture in which state’s decision making is influenced by the private interest of political actors to the detriment of the state; corruption in the appointment of ministers and state-owned enterprises directors as well as the awarding of state contracts; looting of SOEs; widespread and regular violations of the Public Financial Management Act in the procurement and tender processes. Given these accountability crises, debates on political accountability could not have come at a better time than now.

There exist various ways of holding members of elected offices responsible. For example, in a well-developed political structure, the incumbent could be voted out of office for their poor performance and policies. Beyond that, a more formal way of holding elected leaders and policy makers answerable for the use state resources and power is entrenched in the Judiciary. In the separation of power, there exist three divisions of government, namely the legislative, executive and judiciary, each vested with distinct and autonomous authority, and each with the power to limit and check the activities of the other divisions. The process of “check and balance” ensures that each branch of government acts within the purview of his power and in the best interest of the citizens. Thus, the Judiciary has the power to review, invalidate and supervise the actions, decisions and activities of other divisions should they cross their limits, and vice versa. This is the case with South Africa, where the Judiciary is empowered to review legislative, administrative and executive action. This power goes a long way in curtailing misconduct and ensuring accountability.

The South African constitution provides an institutional framework for policing the conduct of the political office holders and the power is vested in the court. In this context, the Judiciary played a key role in the examination of complaints and claims of improper conduct of the former President of the Republic of South Africa, Mr Jacob Zuma and certain members of the Gupta family, in which the former president was required by the High Court to set up a judicial Commission of Inquiry to be chaired by a Judge nominated singlehandedly by the immediate past Chief Justice, Mogoeng Mogoeng. Part 1 and 2 of the report of Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, has been published recently with the former president and a number of close associates found culpable.

Incidents of Attack on Judiciary

Unfortunately, the intervention of the Judiciary in ensuring accountability has been called into question, considering the numerous cases of attacks on the Judiciary. This has taken different dimensions ranging from fierce criticism, fractious utterances and public condemnation of judges and judicial activities, notably among the ruling parties, opposition and political elites. The South African Human Right Commission has expressed concerns over incessant attacks on the Judiciary by senior political leaders. One such incident is the verbal attack on the judiciary by the tourism minister Sisulu in January 2022. The minister posited that:

“Today, in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the worldview and mindset of those who have dispossessed their ancestors. They are only too happy to lick the spittle of those who falsely claim superiority. The lack of confidence that permeates their rulings against their own speaks very loudly, while others, secure in their agenda, clap behind closed doors.” A statement which she later withdrew.

Formal secretary general of ANC, Gwede Mantashe once accused the judiciary of “acting as if they were the political opposition”. Similarly, another prominent politician, Blade Nzimande and SACP secretary general had alleged the judiciary of gradually becoming a “political dictatorship”. More recently, formal president Zuma describes the South African constitutional court as “a few lawless judges”.

There have been cases of contempt of the court which are also a form of attack, manifesting in disobedience towards court order and officer. A good illustration is the noncompliance to order of the court by former president when he was invited by the Judicial commission of enquiry, which r subsequently led to his imprisonment. The protest action against the imprisonment of former president, which consequently led to loss of lives, looting and destruction of properties, may be viewed as an attack on the judiciary.

The judiciary preserves the sacredness of the constitution and ensures the security of the fundamental human right. Ideally, judicial procedure is usually fair and reliable because the judicial umpires are isolated from public influence. William Gumede, a chairman of a civil foundation recently opined that the SA Judiciary’s high level of independence would only attract more and more attacks on them. The attacks on the judiciary especially in the recent time poses serious implications for many areas of SA national life.

Implications of Attacks on Judiciary

Political accountability: the judiciary occupies a key position in ensuring political accountability. More often than not, the attack on the judiciary is a calculated attempt by the political players to win public sympathy. Unfortunately, the tactics can only be used to deceive innocent and uninformed members of the public. For example, the verbal attack surrounding the Judicial commission of enquiry and subsequent insurrection in July 2021 may be described as attempts to circumvent accountability. Attacks on the judiciary portends negative effects on political accountability. However, such attempts will ultimately fail in a country with good institutional quality such as South Africa.

Public Image: the judiciary preserves the sacredness of the constitution and ensures the security of fundamental human rights. Incessant attacks and unfounded allegations on the judiciary tend to result in the desecration of court’s identity as an unbiased and independent judge. This would result in the loss of trust in the judicial system of a nation and raise significant questions on South African institutional quality globally. South Africa has one of the most developed institutional environments in Africa and the increasing wave attack on the judiciary will dent its institutional quality. This is because the attack on the Judiciary will affect the components of institutional quality such as the control of corruption, political stability and absence of violence, regulatory quality, rule of law, voice, and accountability. These will have an unfavourable effect on SA’s ability to attract foreign business and foreign investments, to mention but a few. Hence, there is a need to curtail growing unfounded criticism of the judiciary.

Supremacy of constitution: President of the Republic of South Africa, Cyril Ramaphosa described attacks on the judiciary as a violation of the South African constitution. He remarked that “In all our actions, we need to take heed of Section 165(3) of the Constitution, which says: No person or organ of state may interfere with the functioning of the courts. We interfere with the functioning of our courts and weaken the rule of law when we attack the judiciary. Our failure to implement our courts’ injunctions weakens our constitutional democracy.”

Conclusion

Rather than trying to evade political accountability and denting the nation’s public image or questioning the supremacy of the nation’s constitution, the ideal step for the aggrieved party or person to take is to appeal against court judgement rather than a fictitious display of victim mentality. In the instance where the Judiciary is found wanting in the discharge of their constitutional responsibility, other arms of government especially the legislative arm of government is constitutionally empowered to bring them to book. Overall, the rule of law must be followed in disputing a judgement or bringing a matter against the judiciary, while verbal and other forms of attacks on the judiciary must be condemned entirely. It goes without saying that the judiciary must remain impartial and avoid interfering in matters outside it jurisdiction (within executive and legislative jurisdictions). According to Mogoeng Mogoeng, the former chief justice, court impartiality must be beyond reasonable doubt.

Dr. Adefemi Obalade is a postdoctoral researcher. He writes in his personal capacity.