Judicialization of Politics and separation of powers in South Africa.

By: Yolokazi Mfuto

This article is aimed at unravelling the menacing challenges that confronts the postcolonial democratic South Africa since 1994 and various ways in which the country could utilise to protect the gains of democracy.

The judicialization of politics is an emerging phenomenon, not only in South Africa but globally. This phenomenon is associated with the ascendancy of liberal constitutionalism which safeguard democratic principles. All the fundamentals of liberal constitutionalism – such as the rule of law, separation of powers, respect for human rights, and judicial independence have been the cornerstone keeping this ideal.

An extensive global understanding on the clarity of judicialisation of politics has not yet settled. Nevertheless, in its basic form, the notion connotes ‘the reliance on courts and judicial means for addressing political obligations, core moral, ethical and public policy questions (Prof Ran Hirschl, University of Toronto, Canada)  Historically, the reasons for leaving these ‘political obligations’ to branches of government other than the judiciary were many, but the main ones were the sovereignty of Parliament and executive prerogative. Parliament is supreme on legislative matters, while the executive was regarded as having exclusive prerogative to decide on policy questions.

The South African transition into constitutional democracy is known as the most peaceful settlement that was characterised by negotiations that took place over a period between the apartheid government, leading liberation movements, and other parties. These negotiations resulted into a consensus for an interim constitution that propelled the country to the world acclaimed ‘best’ and most inclusive constitution.

The new socio-economic, political and legal order in South Africa has been deemed as a radical change from a system of parliamentary sovereignty in the hands of a minority government to a ‘truly’ democratic constitutional state which it is entrusted with propelling the country forward cognisant of the injustices of the past.

The Constitution is now entrenched as the supreme law of the South African state, and any law or conduct inconsistent with it is invalid.

The doctrine of separation of powers relates to the distinct functions of three organs of state in relation to their exercise of power. The legislature makes law, the judiciary interprets the law, and the executive must implement the law. This is theorized as a seamless process, that all office bearers would carry their duties with diligence without any territory dominance.

The power of the constitutional democracy, the wrath of separation powers and quest for justice becomes interesting particularly when you investigate the Judicial Commission of Inquiry into Allegations of State Capture (also known as the Zondo Commission) was established to investigate corruption and fraud in the public sector during Jacob Zuma’s presidency. This remains to be one of the phenomenal cases that have explicitly illustrated the power dynamics between the courts, the executive and the people.

The recent case from Parliament where a group of Political Organisations represented as a Progressive Caucus wrote a letter to the Chief Justice Raymond Zondo to mediate a meeting with all parties in Parliament in their quest to formulate a Government of National Unity. Even though parliament had not been constituted this sought to undermine political power and the role of parliamentary procedures. Also, there is no constitutional provision for the involvement of the judiciary to convene political representatives.

It is therefore imperative that South Africa safeguard this separation of powers and avoid judicialisation of politics as it will have adverse consequences for the democratic gains of this country.

The democratic ideal of elected representatives leading the government can be compromised by courts, which are made up of unelected judges rendering judgments on important political matters. It can cause the judiciary, which is not directly answerable to the public, to make decisions instead of accountable institutions like the parliament.

Furthermore, judiciary runs the risk of being politicized if courts are used as forums for settling political issues. Judges may be under pressure to support specific political groups or philosophies, which might jeopardize their objectivity and independence.

It is therefore important that the rule of law and the separation of powers is protected by everyone. Fortunately for South Africa, there is vibrant and audacious civil society that is able to lobby Political representatives and advocate for the upkeeping of the rule of law.

Public trust in the judicial system may be damaged if it is seen that the judiciary is exceeding its jurisdiction or is making decisions that are more motivated by political factors than by legal aspects. Both the rule of law and the validity of court rulings may be compromised by this mistrust. For instance, the people in the province of KwaZulu-Natal led an unrest that claimed about two million jobs losses and more than fifty billion rands from the economy.

The judiciary has a mandate to protect the autonomy of the rule of law as enshrined in the constitution. Its prudent that the Judicial Services Commission (JSC) tighten its advisory role to government on matters relating to the judiciary. This advisory role seeks to minimize the idea that Judges might make decisions that seeks to disempower the other arms of government.

In conclusion, excessive judicialization of politics can jeopardize democratic governance, politicize the judiciary, erode public trust, strain judicial resources, and disrupt the balance of power within the government. However, judicial review and the judiciary’s role in defending constitutional principles remain vital. To guarantee that the court can successfully enforce the law without going beyond its bounds in the democratic process, South Africa must strike a cautious balance.

Yolokazi Mfuto is a communications strategist at the DDP and writes in her personal capacity.