ANC tactics more like 'bullies' than aggrieved democracts

It is not often that one hears Blade Nzimande invoke the name of a US president to support an argument. Like any self-respecting Marxist-Leninist, the SACP general secretary loathes almost everything to do with “imperialist ” Washington.

Yet this week, at pains to convince the media and the public that the ANC-led alliance is not on an offensive against the judiciary, Nzimande turned to Franklin D Roosevelt, the man who presided over the US during the turbulent ’30s and early ’40s.

Although hugely popular with the electorate, Roosevelt’s plans to rescue the US from the economic crisis caused by the Great Depression were often frustrated by the US Supreme Court, which struck down some measures as unconstitutional.

Soon after his re-election to a second term in office, Roosevelt sought to pack the court with judges sympathetic to his New Deal.

The court, Roosevelt charged, had created “a no man’s land where no government — state or federal — can function”.

Although Roosevelt’s court packing plan ultimately failed, Nzimande — addressing journalists on Wednesday night at a press conference after an ANC alliance summit — appeared to be using the saga to make the point that recent public criticism of the local judiciary was nothing out of the ordinary.

“Are we not entitled, like all South Africans, to freedom of  thought and freedom of expression,to also make comments on any matter in South Africa?

“Because we are ANC, SACP, Cosatu and Sanco [the South African National Civic Organisation], when we raise issues about the judiciary, that gets presented as a huge attack on the judiciary. We think that is being very disingenuous.

block_quotes_start Its roots can be traced to the state of siege that the ANC and its alliance partners believe themselves to be under. block_quotes_end

“We have a right also to express . . . an opinion on behalf of the SACP on the behaviour of the judiciary.

“I think it is only fair. Otherwise it means we are creating freedom of expression for some — the media. You defend your space, very strongly.

“Why aren’t you also defending our space to express an opinion?”

Nzimande and ANC secretary-general Gwede Mantashe were reacting to criticism of their recent remarks in which they slammed the judiciary for rulings that went against the government.

Mantashe has been particularly scathing of judges, singling out the high courts in Cape Town and Pretoria as being part of “a drive in sections of the judiciary to create chaos for governance”.

“Those are the two benches where you always see that a narrative is totally negative and creates a contradiction,” Mantashe said in one interview.

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His remarks were followed by the expression of similar sentiments by several ANC leaders, most of whom seemed to have been incensed by the High Court in Pretoria’s ruling that the government should have arrested Sudanese President Omar al-Bashir when he was in South Africa for an AU summit.

Others were still seething at a Cape ruling that National Assembly Speaker Baleka Mbete had acted outside her powers when she ordered the police to remove rowdy EFF MPs from parliament during President Jacob Zuma’s state of the nation address.

The KwaZulu-Natal branch of the ANC Youth League is so angered by the rulings that it is planning a march against South Africa’s judges.

“We call upon the courts to clarify their position with regards to the ongoing chaos in the National Assembly,” the youth league branch said.

“The opposition uses the courts to hide behind freedom of speech in order to disrupt the National Assembly.

“We are saying the courts should desist from entering the political realm and refuse to be used by directionless political parties.”

These utterances, as well as the disturbing decision by the government to ignore a court order that Bashir be prevented from leaving the country, reflectdeepening divisions between the executive and judicial arms of government.

Their roots can be traced to the state of siege that the ANC and its alliance partners believe themselves to be under.

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In a confidential discussion document circulated among ANC alliance leaders ahead of the summit last week, “opposition forces” are accused of using  the courts, among others, to“delegitimise the government”.

The document states: “They use the progressive legal and constitutional framework hard won by our people to challenge legitimate decisions of the executive, parliament and other state institutions, with the sole purpose of making these illegal.”

It was no surprise, therefore, that the summit — attended by senior leaders of the ANC, the SACP, Cosatu and Sanco — took a highly critical view of judges. Singled out for special mention was Deputy Chief Justice Dikgang Moseneke, whose 2012 lecture at Georgetown University in Washington, DC, remains a sore point for the ANC.

In it, Moseneke dismissed the accusation that the Constitutional Court and the constitution frustrated social transformation and service delivery.

“Constitutionalism in South Africa has undoubtedly and commendably taken a pro-poor stance, though it is often the Constitutional Court that has been at the forefront of this rather than the government,” Moseneke said.

He further stated that while US courts had elected “not to exercise jurisdiction over issues that constitute political questions . . . In South Africa the Constitutional Court has not adopted such a doctrine.”

At the post-summit press conference this week, Mantashe suggested that Moseneke had entered the realm of politics with his remarks — and the party was within its rights to challenge him.

“Once a judge goes to a lecture and make statements that are political, I think the protection of that being the judiciary is removed,” he said.

The ANC also feels aggrieved by Moseneke’s remarks at Unisa in November last year when he essentially called for the president’s powers to be reviewed.

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“Much as the constitution is premised on principles of cooperative government binding the national, provincial and local spheres of government, a careful examination of the powers of the national executive in Chapter 5 of the constitution and in other legislation displays a remarkable concentration of the president’s powers of appointment,” Moseneke said.

He partly blamed this on the fact that, when the constitution was being drafted, negotiating parties “were happy to [vest] power in the incumbent president, Nelson Mandela”.

Zuma’s supporters read the remarks as saying Moseneke wants constitutional changes because he does not trust thesitting president.

If indeed the ANC and its partners are looking for a frank debate on the role of the judiciary, they are going about it the wrong way.

Alliance structures have the right to debate whether the courts are guilty of “overreaching”. As Nzimande reminds us with his Roosevelt example, other democracies have gone through such debates and will do so in future.

However, the kind of accusations that alliance leaders throw at judges who rule against them, and the tone of the language often used, are not conducive to a constructive debate.

They come across as veiled intimidation, and their timing, especially as it often coincides with periods when the courts are about to rule on critical issues, leads to suspicion of attempted political interference with the courts.