Zuma overlooking Moseneke has interesting implications

THEY belonged to different liberation movements, separated by ideology but united by the goal to defeat apartheid and to establish a democratic order in which the oppressed African majority would enjoy human rights.

Jacob Zuma of the ANC and Dikgang Moseneke of the PAC - a 1959 breakaway of the ANC - were jailed on Robben Island by the apartheid regime for their political activities.

On his release Moseneke, who had studied law and politics through Unisa while in prison, pursued a career in law. He practised as an advocate in the Pretoria Bar before he joined the private sector, where he held high-profile positions.

For his part Zuma, who informally taught himself to read and write, became a career politician and government MEC.

Both had taken part in the drafting of the new democratic constitution they would later be expected to uphold in their different capacities.

Zuma was central in delivering the violence-prone IFP to the transitional negotiation table that led to the adoption of the Constitution. While practising law, Moseneke took part in the technical drafting committee.

Once the interim constitution was adopted and Moseneke had left the Bar, then-president Nelson Mandela persuaded him to leave his lucrative plum business career for the high court as a judge.

Moseneke was among a few black judges expected to uproot the apartheid era jurisprudence and build a new one based on the new Constitution.

The Constitution of which the drafting had united Moseneke and Zuma, had also become a source of the necessary separation as part of the division of powers between the judiciary, executive and parliament.

Enter then-president Thabo Mbeki, who appointed Zuma as his deputy and Moseneke as deputy to Chief Justice Pius Langa.

This meant Zuma and Moseneke held similarly powerful positions respectively in the executive and judiciary.

Zuma later became head of the executive with the power to appoint a chief justice. When Justice Langa retired, he appointed Justice Sandile Ngcobo, who was due to retire from the court, overlooking Moseneke.

Ngcobo delivered his last judgment on Thursday last week after his own court had earlier dismissed as unconstitutional Zuma's attempts to extend his term of office.

Zuma was very comfortable with Ngcobo. Ngcobo had ruled favourably in cases crucial to Zuma's political life.

When the Constitutional Court found valid Scorpions search-and-seizure warrants on Zuma's lawyers, Ngcobo was the only dissenting voice.

When the court found that the government was duty-bound to establish an independent anti-corruption unit, Ngcobo dissented. Now that Ngcobo has retired, the legal fraternity has been anxious about whether Zuma would appoint Moseneke, with whom he appears to disagree in his judgments and political thought.

Yesterday, Zuma nominated for the chief justice post Judge Mogoeng Mogoeng, a lay preacher, who joined the Constitutional Court in 2009.

At the heart of Zuma's decision to overlook Moseneke are the remarks he made a few years ago shortly after Zuma's Polokwane victory, that he would spend his tenure in the judiciary serving the people of South Africa - "it's not about what the ANC want".

Zuma reacted angrily to the comments, as he believed, quite wrongly, they were oppositionist to the ANC.

The political furore the statement caused was followed by a meeting between ANC Deputy President Kgalema Montlanthe, Moseneke and Langa, who was still in office. After the meeting, preceded by claims that judges were "counter-revolutionary", the ANC issued a statement, saying it was satisfied with Moseneke's explanation.

According to Motlanthe the meeting concluded that Moseneke's statement was misunderstood as he sought merely to stress judicial independence from all political parties. Motlanthe later told a gathering in Cape Town the ANC accepted Moseneke's explanation.

Zuma's overlooking of Moseneke - which in itself is not legally wrong but politically naive - will have interesting implications.

Firstly, if Zuma's problem lies in Moseneke's judicial philosophy of non-deference to the executive, then tough luck to him.

Judging by his recent comments about judges who overturn legis-lation passed by Parliament, it makes sense that he liked Ngcobo's executive deference approach.

But appointing Mogoeng is unlikely to change the court's philosophical posture.

The present political context, in which unconstitutional laws are being proposed and corruption runs rampant, obviously has a psychological effect on the judiciary, who could feel constitutionally obliged to stop the malaise.

Zuma's gripe will remain personal and petty rather than substantive. It won't swing the court's activism stance. Not now. The edifice of jurisprudence will take decades to undo.

Secondly, appointing anyone less experienced than Moseneke in Constitutional Court matters and in running of the court itself, means Moseneke remains a towering figure in that court.

Thirdly, avoiding Moseneke means despite his claims that he follows in the footsteps of Madiba, Zuma is unable to be reconciliatory. He is unable to rise above personal petty political bitterness triggered by a misunderstanding which was explained to the satisfaction of his own party.

Fourthly, it means Zuma places high premium not on who is well qualified for the top job, but on who he is politically comfortable with.

This also places an unfair burden on Mogoeng because public perception would have a certain narrow political expectation of him.

He will have to continue to defer to the executive. It has paid dividends, unless he works to prove a point.

Fifthly, it means Zuma has forgotten the bigger political contribution Moseneke made in the struggle against apartheid simply because Moseneke appears to be too independent for his liking.

Finally, it also means that Zuma would rather work with the Freedom Front and National Party ministers, sharingcabinet secrets with them, than trust a well-qualified freedom fighter with whom he once shared the prison for a noble cause.

- Mkhabela is editor of Sowetan