Monday, June 30, 2008

Retirement of Concourt judges 'concerning'

Of the institutions of South Africa that function on a semi-coherent and independent basis, the Constitutional Court is one of them. It has made decisions in the past that go against the wishes of the ANC and the government which reinforced its independent status despite intimidation and bullying tactics from the black elite in the ANC.

It is the Constitutional Court that will decide on the fate of the Scorpions whose evidence will be needed to prosecute Zuma.

It is the Constitutional Court that will probably be approached by Zuma should he ever appeal a guilty conviction.

By that time, Zuma may be president and it is Zuma that will appoint the judges to the Constitutional Court. Somebody see a problem here?

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Almost half of the country's Constitutional Court justices, including the country's top judge, are set to retire within the next 15 months, sparking concerns that executive-minded and not independent justices could be appointed to succeed them.

Five constitutional court justices are due to retire from the 11-member court, with Justice Tholakele Madlala stepping down later this year, and Chief Justice Pius Langa as well as Justices Kate O'Regan, Albie Sachs and Yvonne Mokgoro set to retire in October 2009.

Key to the process is whether President Thabo Mbeki will be able to appoint the new justices before he steps down as the country's head of state, or whether his successor - widely believed to be Jacob Zuma - will be responsible for the appointments.

The assumption is that because of Zuma's legal woes, he is more likely to want to make political appointments to the highest court in the land.

The issue is complicated by Cape Judge President John Hlophe's alleged attempts to influence two of the court's justices to make pro-Zuma rulings, as well as a clear signal by the ANC's new guard at the party's national conference in Polokwane, that transformation of the judiciary should be speeded up.

Mbeki ensured that several controversial bills that were widely regarded as a threat to judicial independence, were withdrawn from Parliament for more consultation, after he was petitioned by among others, Deputy Chief Justice Dikgang Moseneke.

One of the bills, the Superior Courts bill, would have given a future chief justice enormous power, leading to concerns from opposition parties that a future government might want to appoint a lapdog chief justice to do its bidding.

Among those who have expressed public concern about a potential Zuma-appointed Bench, is UWC Professor Pierre de Vos. In a recent Constitutionally Speaking Blog, De Vos expressed concern that Zuma, the man most likely to succeed Mbeki, will have the constitutional power to make important judicial appointments, including the chief justice and his or her deputy.

De Vos has suggested that the justices step down early, so that Mbeki can still appoint their successors while in office. He also notes that the president has "some considerable say in the appointment of several members of the JSC (Judicial Service Commission)".

The JSC is the constitutional body tasked with interviewing potential candidates for appointment to the Bench. "Zuma could try to appoint 'sound' people to the JSC, who would try to ensure that only pliant... lawyers are nominated for positions on the Constitutional Court," De Vos said.

However, Marumo Moerane said he did not believe that the appointment of new Constitutional Court judges could be politically manipulated.

"In 15 years of the existence of the JSC, there has been no suggestion that the process was manipulated politically."

However, he agreed that some appointments to the JSC, would by their nature be political, as it consisted of among others six members of the National Assembly and four from the National Council of Provinces.

However, the process of shortlisting potential candidates for the Bench, was done by an ad hoc committee of eight JSC members - none of them politicians.

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