In its famous, and controversial, statement on the judiciary of 8 January 2005 the ANC, argued that there was a need to 'transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination'.
Failure to do so, the ANC said, 'will inevitably result in popular antagonism towards the judiciary and our courts, with serious negative consequences for our democratic system as a whole'.
Not long after the ANC statement there was indeed an upsurge in antagonism towards the judiciary, prompted by the verdict of Judge Hilary Squires in the Schabir Shaik trial at the beginning of June 2005. Ironically, though it no doubt expressed a type of popular sentiment, this antagonism emerged most strongly from within the ranks of the ANC itself, as well as from its allies in the tripartite alliance. Motivating these attacks was their perception that the judgment implicated then Deputy President Jacob Zuma.
In a statement of June 5 the ANC Youth League attacked the judgment stating that 'the judge himself, by unduly pronouncing on the guiltiness of the Deputy President in his absentia, is in fact issuing a political verdict and we shall deem this verdict absolutely wrong and baseless in as far as it unduly rubbishes the name of the Deputy President'.
The next day's Cosatu statement was just as damning. Cosatu described the Shaik trial as 'nothing but a political trial of the Deputy President in absentia'. The statement went on to say that 'The choice of a long retired judge who is a former Justice Minister of the then Rhodesia indicates the extent to which the country have not succeeded to transform its judicial system'.
Since June 2005 the Shaik judgment has been upheld by both the Supreme Court of Appeal and, in October 2007, the Constitutional Court. This can be seen as strong confirmation that the judgment was in broad terms correct.
Antagonism to the judiciary is not therefore necessarily a reflection of shortcomings on its part, and does not necessarily provide proof of the need to transform what the ANC called its 'collective mindset'. Indeed the judiciary may incur displeasure, popular or otherwise, for doing exactly what it is supposed to do.
But how then will it be possible to build respect for the judiciary, an integral element of the process of building popular acceptance of the law in South Africa. If the judiciary cannot 'play to the crowd' of necessity its credibility must be built on other grounds, amongst these its independence, its representiveness, and its integrity.
In relation to the first of these there is much to be positive about. The protracted dispute over judicial independence which unfolded over recent years may be said to have deepened understanding about, and therefore strengthened, the independence of the judiciary. This is reflected to a large degree in the content of two bills which are currently before parliament. The South African Judicial Education Institute Bill and Judicial Service Commission Amendment Bill both depart in substantive ways from their predecessors – part of the package of five justice bills initially released by the Ministry of Justice in December 2004 – which were widely regarded as threatening the independence of the judiciary.
If developments on the terrain of building judicial independence are quite positive, representation is however a more mixed affair. One cannot dismiss progress in addressing issues of representiveness in the judiciary as considerable emphasis has been given to this issue by the Judicial Service Commission which is responsible for most judicial appointments. But this is something that depends on a suitable pool of candidates and cannot merely be rectified in the short term.
Public confidence also depends crucially on trust in the integrity of the judiciary, another issue on which there are grounds for reservation. The provision in terms of the new JSC Amendment Bill, for a judicial code of conduct, and a judicial conduct committee, are signs that questions of judicial ethics and accountability are being addressed.
But the decision by the JSC in October not to proceed against Cape Chief-Justice John Hlophe, despite evidence that he used his position in favour of a company from which he was receiving a retainer, raises questions about whether any judicial conduct committee which may be established will have the will to hold judges to the standards provided for in the envisaged code of ethics, once it is drafted and adopted. If one of the dimensions of judicial independence is that the judiciary is responsible for holding its own members to account, then it needs to be vigorous in this task or run the risk of undermining public trust.
Building public trust in the judiciary is therefore in many ways about the transformation of the judiciary and the actions of the judiciary itself. However there are some dimensions of the problem of judicial credibility which can be seen as lying largely outside of the control of the judiciary and the process of transformation.
In contrast to their response to the Shaik judgment, the response of the ANC Youth League and others to the judgment of Judge van der Merwe, when he acquitted Zuma of rape in May 2006 was one of broad approval. Because they agreed with the verdict, groups like COSATU and the ANC Youth League voiced support for the entire legal process, notwithstanding Judge van der Merwe's background as an apartheid era judge in South Africa.
The different reactions to the Shaik judgment and the judgment in the Zuma rape trial suggests a cynicism about the judiciary where the response to court judgments has nothing to do with their merits and equally little to do with any supposed 'failure to transform'. Groups like Cosatu and the ANC Youth League should therefore be challenged for feeling that they are at liberty to undermine the judiciary and the rule of law principally because the Shaik judgement was seen to threaten their political agenda.
At the same time it may be acknowledged that the attack on Judge Squires' Shaik judgment reflected an underlying perception on their part that the court had reached a verdict on a prosecution which had been entered into so as to undermine Zuma and that this reflected a selective politically determined use of prosecutorial authority.
The origins then of the ANC Youth League and Cosatu attacks on the judiciary following the Shaik judgement lay not within the judiciary itself, but in the perception that decision-making within the National Prosecuting Authority was subject to political manipulation.
The collective weight of evidence in the public domain both on the arms deal and related trials, and the recent suspension of NPA National Director Vusi Pikoli, appears to indicate that the executive has allocated to itself the authority to interfere in prosecutorial decision making in South Africa for the purpose of protecting some of those in positions of power from the operation of the law.
In so far as the courts give judgment on prosecutions which have been entered into selectively, they become agents, whether willingly or not, of the misuse of the criminal justice process. Even when deciding cases on the evidence before them, the principles of justice on which judicial decision making is supposed to be based are undermined.
Political interference in the NPA therefore has a destructive effect which goes far beyond its impact on the credibility of the NPA itself, undermining belief in the principle of equality before the law and thereby undermining respect for justice and the law in South Africa.
If the ANC at Polokwane is serious about building public trust in the in the criminal justice system, then it should commit itself to putting the independence of the NPA on a far firmer footing, and should decisively reject political manipulation of prosecutorial decision-making. Such manipulation has not only been a major contributor to conflict within the ANC itself but has also undermined the NPA, the judiciary and the overall credibility of the law in South Africa.
David Bruce is a Senior Research Specialist in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
Originally published in Sunday Independent, 2 December 2007.