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Sunday Times STLive By Mondli Makhanya , 2012-03-04

Behind the soothing words, there is a power grab at play

Mondli Makhanya
Image: Sunday Times

Make no mistake about the government's intentions towards judicial authority

IF Justice Minister Jeff Radebe had his way, we would all believe that the government's proposed review of the judiciary was informed by a noble desire for judicial reform and not by a need to curtail the powers of the courts.

"The independence of the judiciary is not at stake," Radebe said this week as he unveiled a discussion document on the subject.

If Radebe's deputy, Andries Nel, had his way, we would accept that this process is a way of strengthening the judiciary.

If Science and Technology Minister Naledi Pandor had her way, we would believe that President Jacob Zuma was misunderstood when he made troubling anti-judiciary comments a few weeks ago.

Pandor essentially told parliament that Zuma did not mean what he said when he said what he said.

"He [Zuma] stated that the intention of [the] government is to review decisions that are germane to the executive and its exercise of power in terms of national and other legislation that has been [the] subject of rulings by the Constitutional Court," the usually logical Pandor said in defence of the indefensible.

If Presidency spokesman Mac Maharaj had his way, we would buy Pandor's argument and pretend we had misheard the president.

This was Maharaj's attempted damage-control spin: "The [judicial review] is with a view to assess the transformative nature of jurisprudence from the highest court in the land in promoting an equal, nonracial, nonsexist and prosperous society.

"This must therefore not be viewed as an attempt by [the] government to undermine the independence of the judiciary and the rule of law which are entrenched in our constitution."

For the record, Zuma told Independent Newspapers that the government wanted to review the Constitutional Court's powers. "We don't want to review the Constitutional Court, we want to review its powers," he said, before mouthing some gobbledygook which exposed an embarrassing lack of understanding of the functioning of the courts.

If all the aforementioned individuals had their way, we would also ignore the comments of senior ANC leaders, including secretary-general Gwede Mantashe and national executive committee member Ngoako Ramathlodi, to the effect that the nation's judges are too big for their boots.

Unfortunately for them, South Africans are not imbeciles. Most of the 50 million citizens (plus the five million Zimbabweans in our midst) have substantial brain matter inside their skulls.

Radebe went to great lengths this week to stress that the 18-month exercise was innocent and for the good of us all.

On the surface, some of the outcomes sought are not controversial. They include the strengthening of the Judicial Service Commission and Magistrates' Commission, improving the skills of judicial officers, and creating ways for the state to monitor the execution of court decisions. Another is to achieve greater dialogue between the judiciary, parliament and the executive on each arm's role in transforming society.

But there are disturbing questions that Radebe and his colleagues cannot answer. Why is there a need to review judgments of the Constitutional Court in the first place? Is it pure coincidence that this review follows hot on the heels of judgments which have gone against the government?

Why is this review coming at a time when the government has voiced its displeasure at the courts as a result of these unfavourable judgements? Are we to turn a blind eye to the fact that it follows open hostility towards the courts by the governing party? Are we to read nothing into the fact that there is growing antipathy towards the constitution in senior ANC ranks, with some even falsely arguing that this noble document was the fruit of compromise with the evil Nats?

These questions may sound somewhat conspiratorial, and Radebe and Co will probably be acting puzzled as to why they cannot be taken at their word. They are, after all, men and women of integrity who have taken a public oath of allegiance to the constitution.

Well, I think we would all dearly like to take them at their word.

But it is no secret that the sentiment in the ANC right now is that there is too much power in the hands of judges, who party apparatchiks describe as unelected individuals. Powerful people in the party believe that, because it has an electoral mandate to govern, it should not be interfered with by pesky judges when it misgoverns or crafts bad laws.

So we should not be lulled into complacency by comforting talk from Radebe et al. There is a power grab at play here.

Now that the government is proceeding with the review, it will be up to the citizenry to make sure that those who want to undermine our constitutional democracy do not succeed. It will be up to the public to loudly demonstrate to our governors that we are not the imbeciles that they take us for.