Stop verbal attacks on the judiciary

In the Federalist Paper 78, first published in 1788, Alexander Hamilton proposed the location and role of the judiciary in the American constitution.

He proposed an independent judiciary, noting that the judiciary "is the least dangerous branch" of government and the weakest.

This weakness is based on two fundamental truths about the structure of the state: The legislature controls the purse and the law making power, while the executive wields the power of coercion.

Hamilton concluded that individual liberty could only be guaranteed by an independent judiciary.

The notion of an independent judiciary has proved enduring and many countries, including SA, have followed it.

But our judiciary was given greater powers by the constitutional assembly (that crafted our constitution) in that it can review legislative, executive and administrative action.

Nelson Mandela believed that the sustenance of the democratic project "hinges upon" the judicial branch, at whose pinnacle stands the Constitutional Court.

Recently, Gwede Mantashe, ANC secretary-general, accused the judiciary of political antagonism towards the government. The forensic merit of this claim is dubious. Our courts routinely uphold government arguments. It would be too tedious to recount those judgments here. So, why is Mantashe critical of the courts?

Mantashe was making a broader point that has been gaining traction in the ANC - the claim that the judiciary has assumed a counter-majoritarian posture. Mantashe is not the first ANC politician to articulate this.

In 2005, it was president Thabo Mbeki who set the political task of the liberation movement as the transformation of the "collective mindset" of the judiciary to bring it into "consonance" with the will of the majority.

In 2012 President Jacob Zuma proposed a review of the constitutional role of the judiciary.

Scepticism about the power of judges is never unwarranted in a system based on the will of the people. But in engaging in judicial critique, we should maintain a principled perspective, for good reasons. The political landscape is uncertain, tentative, provisional and always subject to unpredictable variables.

But a foundational constitution is informed by legal principle. Legal principle does not change when the politics change.

The principal role of the judges is to interpret and apply the law, based on legal reasoning. While judges function in a political context, their role is distinct. It is not fair to criticise them for failure to show political sensitivity in judgments.

Any criticism of the judiciary should be informed by concern about judges' fidelity to the law.

During the struggle against minority rule, it was the unanimous view of the ANC that a key component of a democratic South Africa would be the installation of an independent judiciary to interpret an inviolable bill of rights contained in a supreme constitution.

The African claims document, adopted by the ANC in 1943, unequivocally pronounced the centrality of a bill of rights in any democratic setting. In 1989, the ANC adopted its constitutional guidelines which informed its approach to multiparty negotiations.

The guidelines also called for a bill of rights and a supreme constitution.

These were approved at both Codesa sessions, resulting in the adoption of the interim constitution and the present constitution.

Historically, the ANC has been committed to an independent judiciary whose primary occupation is to interpret and apply the bill of rights. The current ANC rhetoric against the judiciary is an abandonment of its historical path.

The power of the judiciary depends on the will of the executive and the legislature to implement court decisions. When they don't it is the constitution that suffers.

For the most part, the cases the judiciary deals with are not concerning high constitutional principle. Courts are often seized with mundane cases often manifesting administrative sloth, inefficiency and corruption at the lower rungs of the bureaucracy.

The negative impact of such administrative inefficiency is felt most acutely by the poor and the marginalised, who have limited access to lawyers.

Ordinary people do not have an alternative to the state when government officials do not do their jobs. Any signal to bureaucrats that judicial decisions can be dispensed with, carries with it the risk of a slide into the abyss that could take years to recover from.

The victims of such a slide will not be presidents of foreign countries, but ordinary people in this country who depend on the law to guarantee their access to basic constitutional entitlements.

For this reason, the ANC must urgently abandon its anti-judiciary rhetoric and return to the path of constitutionalism that it advocated during an era when it meant the difference between life and death.

lNgcukaitobi is an advocate in Johannesburg. He writes in his personal capacity