Courts cannot be co-opted into co-operative governance without losing their independence
The presentation today by Justice Minister Jeff Radebe of Cabinet's proposed assessment of Constitutional Court judgements confirms our fears that government may be attempting to co-opt the courts. It falls short of meeting the requirement we set last week.
We said the only way in which such research would be acceptable is the form in which Science and Technology Minister, Naledi Pandor, framed it in the National Assembly; to paraphrase: review of Constitutional Court judgments relevant to the Executive to assess whether government has given effect to the Court's rulings in its policies and programmes, and how the results impact the lives of citizens and socio-economic transformation.
The discussion document presented by the Minister still states that the assessments (now to be done jointly with research institutions, therefore by the executive) will evaluate the decisions of the Constitutional Court against the desired transformation landscape. This will result in "debate" and then a programme of action.
The extent to which the court's decisions are implemented by government comes as an afterthought instead of being the primary focus of any study.
As always the plight of the poor is partially used as the rationale for the exercise.
The creation of socio-economics rights of "access" to housing, health, food, water and social security subject to the availability of state resources was always an open invitation to the courts to step on to the executive's policy and budgetary terrain. That made their enforcement by courts as against the government a challenge.
The proper way to deal with this is, as late Chief Justice Mahomed said, for the courts to inquire whether the resources exist and whether the relevant department did in fact try progressively to realise the relevant right.
The danger persists, however, that government will use this exercise to co-opt the courts into a kind of Chapter 3 co-operative governance. That co-operative governance is constitutionally limited to the three spheres of government proper (national, provincial and local), as opposed to the three branches of state (executive, legislative and judicial).
Judges cannot sit and interface with National Ministers and Provincial Members of Executive Committees in a glorified version of the Minister and MEC meetings without losing their independence.
Minister Radebe's document, in paragraph 3.2.1, states that: "Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in union, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state".
But to co-opt like this is to compromise the judiciary into co-responsibility for policy "outcomes". That is not their job. They must interpret the Constitution free from political pressure.
It remains problematic that Cabinet is undertaking this exercise.
The Chapter Nine Review was initially proposed by Cabinet. After our objections that the Chapter Nines are accountable to the National Assembly and no-one else, Parliament took over the review.
The courts are accountable to no-one for their judgements. That principle may not be tampered with in any circumstances.
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, February 28 2012
Click here to sign up to receive our free daily headline email newsletter