by Mazibuko Jara, Mail & Guardian
South Africa's Constitution requires the
Constitutional Court and all others to interpret, protect and enforce
the fundamental principles and rights it contains. So why is President
Jacob Zuma and the Judicial Service Commission (JSC) imposing Justice
Mogoeng Mogoeng as our chief justice when he is clearly unsuitable for
the position?
It says a lot about ANC rule under Zuma. Excessive presidentialism,
loyalty to the centre, intolerance of dissent and debate and executive
lawlessness did not leave with Thabo Mbeki. Not one ANC branch leader or
Cabinet member challenged the recommendation of an obviously flawed
individual, despite genuine concerns raised by progressive civil
society. ANC Women's League president Angie Motshekga sacrificed the
interests of women on the altar of "loyalty to the president". And with
the Communist Party defending Zuma's choice, he has achieved what Mbeki
could not: a lackey SACP. Cosatu stood up, but was ignored.
The broad church largely swallowed Pastor Zuma's medicine, yet Mogoeng
threatens the independence of the Constitutional Court. The JSC failed
its section 165 constitutional mandate to "assist and protect the courts
to ensure their independence, impartiality, dignity, accessibility and
effectiveness".
The affirmation of Mogoeng is a tragic step in the wrong direction. In
contrast, Nelson Mandela and Mbeki's Constitutional Courts were full of
dynamic individuals loyal to the Constitution, not politicians. South
Africa is losing its democratic moorings with the compromised JSC, the
end of the Scorpions, attacks on the Asset Forfeiture Unit, the "secrecy
bill", the shoot-to-kill police force, the continued looting of state
resources and the ongoing socioeconomic inequalities.
By not appointing Deputy Chief Justice Dikgang Moseneke, the ANC fails
to harness the best we have for its nation-building and developmental
state projects. Instead, Zuma is institutionalising authoritarian
populism in the state while anti-poor economic policy remains. Zuma has
also emboldened religious and traditionalist conservatives to seize the
democratic project under the guise of Africanism, culture, tradition and
assumed majority opinion -- Mogoeng used this discourse at the JSC
interview.
Many progressives instinctively defended Mogoeng against what they saw
as liberal, racist, white attacks. Vested legal interests have used
Mogoeng's fallibilities to defend their space. But we cannot ignore the
fact that his values are inconsistent with judicial transformation. This
moment calls for clarity of thought, commitment to principle and
dissent.
Zwelinzima Vavi told SAfm that if the man who had dragged his partner
behind a bakkie for 50m was white there would have been an uproar, and
correctly so; even more so had the judge reduced the sentence and
ensured no prison time was served by the offender, as Mogoeng decided in
State vs Mathibe.
That made me think: if as chief justice Mogoeng had to hear a case for
same-sex marriage, how would he weigh up his mandate from "God" against
that of the Constitution? In Mogoeng we will have a black chief justice,
but women's rights and equality will not be safe in his hands. Our
understanding of judicial transformation, therefore, has to encompass a
broader set of substantive factors that goes beyond numbers.
Closing democratic space
Do Mogoeng's supporters realise they are acquiescing in closing
democratic space and assailing the sanctity of the Constitutional Court?
Mogoeng will not only head the Constitutional Court for 10 years; he
will also chair the JSC, which recommends appointments to all other
courts. He will be at the centre of deciding the next generation of
judges. He will preside over the interviews of every judge replacing the
Bench of the Constitutional Court, including his successor. His legacy
will last far longer than 10 years.
Do we have to dig up the histories of compromised judiciaries from the
United States, Zimbabwe and other countries to convince Mogoeng's
defenders? Given his "calling by God" and his promised defence of those
put under scrutiny by the media and civil society, Mogoeng also portends
a scary future for dissent and critical thought. His defenders must
confront and transcend the ANC identity, loyalty to the president and
narrow "black" solidarity that are perhaps behind the silence of many
progressive black lawyers, advocates and judges.
Commitment to the Constitution must not just be claimed, as Mogoeng did
before the JSC, it must be seen in practice. Mogoeng has already failed
this constitutional test. It will be surprising if he can separate his
conservative personal beliefs from his work. Critical legal scholars
have shown that the personal views, circumstances and histories of
judges are a factor in their judgments; these get reinforced by dominant
and oppressive ideologies, systems and structures in society. If this
was not the case, there would be no argument for more black and female
judges. It will take extraordinary courage for Mogoeng, for whom the
Bible and not the Constitution is supreme, to stand firm for lesbian and
gay rights if his own interpretation of the Bible says he must not.
We cannot reduce critiques of Mogoeng to the concerns of liberals,
whites and the media. The view that our constitutionally protected civil
and political rights are liberal or bourgeois is flawed: they affirm
the democratic values of human dignity, equality and freedom. They were
not delivered from on high by liberals, but fought for by ordinary
people. An ordinary woman challenged the apartheid government's influx
control policy and won administrative justice; trade unions won worker
rights.
It is a critical mistake to hand over these rights to liberalism, which
is strategically incapable of advancing them. These rights must be used
to advance a progressive agenda of social and economic change. To miss
this is to fail to confront the failures of the ANC in transforming our
society. The Constitution also has grey areas, including the so-called
property clause, that require reasoned debate and sustained social and
political struggle. Tragic as the decline into authoritarian populism
is, we must remember that rights, democracy, freedom and systemic change
are not won by courts or the political elite. They are won by the
people -- organised, conscious and mobilised behind clear demands for
socioeconomic change. The struggle for democracy has begun all over
again.
