NEWSLETTER: DECEMBER 2011
Two months have elapsed since the last FUL newsletter. In that time a great deal that is important to FUL and its members has been happening in our region and it seems appropriate to pause and take stock as the year draws to a close.
It is not my intention to present a detailed chronology of FUL's activities over the period under review - such particularity is on our website (http://www.freedomunderlaw.org) for those who are interested. Here I shall merely give my own sense, in advance of a FUL Board meeting in January at which priorities for 2012 are to be considered, of some highlights and lowlights for the rule of law in Southern Africa in the latter half of 2011.
FUL's commitment to the rule of law extends to the whole of Southern Africa and it is fortunate to have on its board committed members from across the region. I pay tribute to them and thank them for their counsel and support in many difficult issues which have arisen this year. In addition FUL is fortunate to have the august array of members of its International Advisory Board as a backdrop to its activities: its members too have been a source of strength and inspiration.
Undoubtedly we have needed this steadfast backing: there have been some setbacks. Throughout much of the region there have been serious threats to the rule of law. Zimbabwe remains a running sore of executive contempt for the rights of its citizens in flagrant breach of its own constitution. An ominous turn for the worse came with the effective suspension of the SADC Tribunal, the highest international-law body in the region.
The circumstances surrounding this were shared with many of you at public events in Johannesburg and Windhoek when the deposed President of the Tribunal, former Chief Justice of Mauritius Ariranga Pillay, described how the SADC Summit, following the course already set by the SADC Council of Ministers, ensured that the Tribunal could no longer hold governments to account in terms of their SADC-Treaty and other international-law obligations.
This followed a string of final and internationally-binding awards made by the Tribunal against the government of Zimbabwe, but consistently defied by it. Several of the claimants have now turned to the African Commission and Court but, as far as I know, the African Court - in which so many hopes for the rule of law in Africa repose - is yet to hear a case.
Our gatherings in Johannesburg, convened together with the Constitutional Court Clerks' Alumni Association and hosted by leading firms of attorneys, have been very well attended and elicited lively debate. Our outreach in the region has been particularly heartening and it was good to learn at first hand the views of colleagues in the region at the inaugural FUL meetings in Namibia and Botswana. The problems we all face have the same refrains: governments regret the social contract concluded in constitution-making and rumble ominously about courts "interfering in matters of policy". Other concerns are disproportionate political involvement in the selection of judges, the apathy of the legal profession, judicial delays and, worse, judicial misconduct.
Beatrice Mtetewa and I, in cooperation with the Open Society Initiative, flew to Swaziland to confer with Judge Masuku of the Swaziland High Court and later with representatives of the Law Society who were deeply concerned by unilateral steps taken by the chief justice, among them a highly contentious hearing aimed at Judge Masuku's dismissal. Our efforts notwithstanding, Judge Masuku was later dismissed, although it was reported that this was done over the objections of the minister of justice, who resigned in protest. FUL has offered its support in litigation aimed at redressing this brazen flouting of the rule of law.
In South Africa we were encouraged by two significant forensic successes. One of them we reported on previously: FUL's successful appeal to the Supreme Court of Appeal (SCA) relating to the disgraceful shelving by the Judicial Service Commission (JSC) of the complaint against Judge President Hlophe arising from his allegedly trying to influence members of the Constitutional Court in a judgment they were considering involving Mr Zuma.
Since then much of the gloss of this success has dissipated, however. Bizarre on-off attempts were set in train by Judge Hlophe to seek to appeal to the Constitutional Court, at the same time demanding that eight acting judges be appointed to that Court to hear the matter because eight of the complainant justices are still on the Bench. Difficult questions of recusal, the appointment of temporary replacements and the doctrine of necessity are holding up determination of the merits of the complaint.
A preliminary hearing took place at the end of November regarding some of these issues, including the jurisdiction of the Court and whether it would be "in the interests of justice" to grant leave to appeal. Judgment on this procedural forerunner to a possible determination of the merits is still awaited.
Meanwhile FUL had lodged a new complaint against Judge Hlophe arising from the outrageous calumnies he had broadcast far and wide in a flurry of counter-allegations he levelled at the justices of the Constitutional Court in general, with Chief Justice Langa and Deputy Chief Justice Moseneke being singled out for especial opprobrium. As these wild and inherently incredible allegations had proved wholly unsubstantiated and as they had undoubtedly been published by Judge Hlophe - and never retracted - a substantive complaint of gross misconduct was lodged by FUL on 30 May 2011. FUL had and still has no doubt that this conduct on the part of Judge Hlophe breaches a number of basic principles of judicial ethics and renders him unfit to continue sitting on the Bench.
Notwithstanding the gravity of the complaint and the urgent need to protect the standing of the judiciary, and despite numerous enquiries and reminders by FUL's attorneys, there was no substantive response until 15 December 2011, when it was intimated that the Judicial Conduct Committee, an organ of the JSC, had decided to suspend further investigation of FUL's complaint until "finalization" of the justices' original complaint (whatever that may mean and whenever it may come about). A letter calling for full details of this purported exercise of a discretion to discontinue disciplinary proceedings has been sent and the prospect of yet further litigation looms.
To make matters worse Judge Hlophe, apparently not in the least fazed by the grave allegations against him, blithely continued to exercise his official powers as judge president of the Western Cape High Court. Then, to FUL's astonishment it was reported in the media that in October 2011 Judge Hlophe had sat as a member of the JSC (as a substitute-representative of the judges president) to assess the fitness for office of aspirant judges.
FUL immediately communicated with Chief Justice Mogoeng about the matter but was unable to persuade him of the urgency of the matter. In the result no substantive reaction can be anticipated until some time in the second quarter of next year when the JSC next meets. It is a matter of increasing concern that the enormity of the crime charged against Judge Hlophe by the members of the highest court in the land is apparently fading. We remain convinced, however, that notwithstanding this sang-froid on the part of some of Judge Hlophe's colleagues - possibly because of it - we simply have to persist in our endeavours to bring the matter to a satisfactory conclusion. We must make plain to those who would sweep this matter under the carpet that we will not be silenced.
On a more positive note, there was our urgent constitutional challenge to the purported extension by executive action of the term of office of then Chief Justice Sandile Ngcobo (reported in the last newsletter). In the event FUL's submissions were upheld in all material respects. The matter was fraught with a multitude of difficulties, political, constitutional, procedural and to some extent even personal. In the end our decision to challenge the matter in the manner we did and the contentions we advanced in support of our attitude were vindicated by the judgment of the Constitutional Court. As you no doubt know, Justice Ngcobo withdrew his consent to continue in office and a potentially dangerous breach of the separation of powers doctrine was averted.
The JSC hearings for the appointment of a new chief justice, which followed shortly thereafter, were however a source of great embarrassment to us all, I believe, and the rule of law was certainly not promoted by the ensuing spectacle. As in the case of the attempted extension of Ngcobo CJ's term of office, the nomination of Justice Mogoeng was bedevilled by bad legal advice given to President Zuma. In the result the nominee's name was announced before the President had conducted the necessary consultations demanded by the Constitution and Justice Mogoeng was effectively set up as a target in an unedifying contest. It is to be hoped that in future better attention will be paid not only to the requirements of the Constitution regarding the appointment of the chief justice but generally to ensuring that such an inquisition is never repeated.
Some months ago, following proceedings in the Constitutional Court pressing for an enquiry into the so-called Arms Deal, the president announced the appointment of a judicial commission to enquire into the matter. Though it is early days yet, the commission hardly having started its work, the appointment itself is a favourable portent and demonstrates that strategic litigation conducted competently can still, as in the heyday of the Legal Resources Centre under apartheid, strike important blows for the rule of law.
Likewise a judgment in the Constitutional Court relating to the powers and status of the investigative body created to take over high-level crime investigation, especially corruption, reaffirmed the importance of the independence of the judiciary in ensuring the rule of law. Furthermore, in recent weeks the SCA held that Advocate Menzi Simelane had not been lawfully appointed National Director of Public Prosecutions by President Zuma. Although the president initially stated that he "respects" the ruling, an appeal has since been noted challenging the judgment on a variety of grounds.
Whether as a reaction to these adverse findings by the judiciary or otherwise, there have been a number of disturbing utterances from time to time over the period under review by various government and ANC spokespersons, notably the presidency itself, the secretary general of the ruling party and Deputy Justice Minister Ngaoko Ramathlodi. In one way or another and in more or less directly minatory mode, these utterances have accused the judiciary of usurping the functions of the other two pillars of state, of blocking transformation, and the like.
We seem to have come a long way since President Mandela in ringing tones announced in 1995 that although he did not like the judgment of the Constitutional Court setting at nought a proclamation he had issued, he and his government would unquestioningly accept the judgment and abide by its terms. Instead, by way of contrast, it was announced two weeks ago that Cabinet intended to commission a "review" of Constitutional Court judgments to assess their effect on "transformation". This ominously replicates the language of the SADC Summit and Council of Ministers as a prelude to paralysing the SADC Tribunal. It also serves as a timely reminder of the old truism that the price of liberty is eternal vigilance.
In similar vein the South African House of Assembly recently passed the Protection of State Information Bill after many moons of bitter debate and vociferous objections from many informed quarters both inside and outside Parliament and the ruling party.
The Bill, which makes significant inroads into freedom of information and is said to place undue obstacles in the way of "whistle-blowers", has not yet passed into law but substantial statutory amelioration in the last stages of the legislative process seems a remote prospect. The FUL Board will be discussing in January a legal challenge to the legislation if it is adopted in the terms which civil society has united to condemn as a grossly retrogressive step as regards freedom of information.
On behalf of the Board, I thank you all for your support and commitment. We wish you well over the festive season and for the new year which lies ahead. We hope to engage with you then again, in the belief that (as the great British constitutional lawyer Walter Bagehot said) for any constitution to survive, it must live in the minds of people.
Johann Kriegler
Christmas 2011
Issued by Freedom Under Law, December 24 2011
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