Zuma sticks to judicial review

President Jacob Zuma has once again defended the proposed review of all Constitutional Court decisions while attempting to allay fears that his party intends to change the constitution.

"We are not intending sitting every day to change the constitution, not at all. We could have done so if we wanted to. We have got enough majority to do so," Zuma told parliament yesterday.

The constitution can be amended by a two-thirds majority, but some sections of it require a 75% majority to be amended. The ANC came in just shy of a two-thirds majority in the last general elections.

Zuma recently called for the top court's powers to be reviewed, sparking a widespread outcry that the constitution was under threat.

But his office later clarified his remarks.

Justice Minister Jeff Radebe has announced an 18-month study of Constitutional Court decisions by academic institutions.

But experts and commentators have questioned the government's motives.

Asked if he would accept a similar review of the executive and parliament by the judiciary, Zuma said such a situation would be untenable.

"You cannot compare in that way to say simply because the government, which is governing, wants to do certain things then if that is the case it means the judiciary also has a right. They are not a government. We must make that distinction. You cannot elevate people to doing the task they are not supposed to do," he said.

Zuma has previously warned the judiciary not to try to co-govern.

Earlier this week, Constitutional Court judge Zak Yacoob spoke of the judiciary's relationship with the executive and legislature, saying that the only talking that could be done with the judiciary should be about "budgets, facilities".

"I would assume that this cannot be intended to mean that the executive and the legislature should be able to discuss matters of importance with the judiciary directly and outside a court hearing in an effort to influence it. If this is what is meant, I would find it difficult to agree," Yacoob said in a speech at the University of Cape Town on Monday evening.

Yacoob spoke of the divided judgments that the Constitutional Court has handed down - an issue described by Zuma in November and last month as a bad reflection on the court.

Yacoob said: "I would be perturbed indeed if 11 judges of the Constitutional Court agreed with each other judgment after judgment, year after year.

"This would be an indication of a judiciary that is not sufficiently representative and lacking the strength required for true independence and impartiality."

Yacoob said that though he did not oppose changes to the constitution, it would have to be done with the required number of votes in the National Assembly.

"We must have the courage to change our constitution when we need to and the wisdom to know when change would be unnecessary, counter-productive or negative in some other way."

When the ANC released its discussion papers earlier this month in preparation for its June policy conference, it omitted a number of contentious issues covered in drafts.

Most prominent were changes to the constitution contained in a version of a document presented to the ANC's national executive committee last month.

In that document, the ANC argued that, though the constitution reflected the party, there were aspects based on "sunset clauses" introduced to satisfy minority groups.

"There may, therefore, well be elements of the constitution that require review because they might be an impediment to social and economic transformation, such as the narrow mandate of the Reserve Bank or the relationship between, and powers of, different spheres of government," the drafters wrote.

But, in the version released for public comment this week, all references to constitutional amendments were removed.

Other ANC leaders, including the party's secretary-general, Gwede Mantashe, have lambasted judges of the Constitutional Court, suggesting that they are "being driven by selfish interests and [are] threatening the stability of the government".

C orrectional Services Deputy Minister Ngoako Ramathlodi warned in September that the ANC's negotiated settlement had taken power from the executive and legislature and given it to the judiciary and Chapter 9 institutions.

Zuma said he would appear before the commission of inquiry into the arms deal if asked.

Responding to a question from COPE MP Papi Kganare, Zuma said he expected everybody subpoenaed to give evidence, including himself, to do so.

"We have set up a commission and the commission will have information before it and it will have the kind of people it will be able to ask questions, and those people will have to go to the commission.

"It could be [COPE leader Mosiuoa] Lekota or Jacob Zuma who was deputy president and is now president. This is a commission of this country that must get the truth. Whoever will be called by the commission will go," he said.

Its terms of reference empower the commission, headed by Judge Willie Seriti, to subpoena witnesses, and to search for and seize assets.

Those who refuse to appear before the commission face a fine or imprisonment of between six and 12 months.

Zuma was non-committal when asked by DA parliamentary leader Lindiwe Mazibuko if he would release the final report of the commission in full.

"Out of respect for the commission and the responsibility which attaches to their work and deliberations, I will not predict or prejudge the future.

"I will be guided by the recommendations of the report, including whether it should be made public .

"To do otherwise will be to unfairly prescribe to the commission the manner in which its recommendations should be framed," Zuma said.