Courts protect, but the people must lead

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We need a democracy which depends on more than the courts to keep it strong.

The Constitutional Court’s judgment on Menzi Simelane’s fitness to head the National Prosecuting Authority (NPA) should have helped repair damage caused by the Supreme Court of Appeals’ decision in the same case.

The earlier judgment gave no convincing reasons for why the courts should be entitled to remove a public official. This column said then, that if they wanted to convince us they were using that power in a reasonable way, we must be told what standard was used to overrule the appointment. This would show that the court had been reasonable and ensure that the government knows how to avoid the courts overruling future appointments.

The legal profession does not seem to think that courts have to explain themselves at all – lawyers who commented on this judgment seemed to think that the president should simply have accepted a poorly reasoned appeal court ruling. The rest of us will hopefully be glad that the courts were forced to spell out their reasons. The constitutional court judgment seems to have done what was needed.

It based its decision on Simelane’s evidence to the Ginwala inquiry which, it found, raised doubts about his honesty and credibility.

A key issue also seems to have been that Ginwala was concerned that Simelane did not accept the NPA’s independence from the justice department. This is entirely reasonable. Clearly, a person who may not believe in the independence of the prosecuting authority – or whose honesty is suspect – should not run the NPA.

But the court does not seem to be saying that the president should not have appointed Simelane simply because the inquiry was unhappy with him. Part of its problem with Simelane’s appointment is that Justice Minister Jeff Radebe told the president not to take his role in the inquiry into account. This implies that, if the president had looked at the inquiry’s findings and could show they were wrong, his decision might have stood. But he failed even to consider the findings. We now have a principle to guide new appointments – where evidence shows a person may be unfit for office, the president must either show that the person is fit or not make the appointment.

The court also said it was entitled to test the rationality of the president’s appointments.

This, it said, meant that it had to evaluate the “relationship between the means employed to reach a decision, on the one hand, and the purpose for which the power to make the decision was conferred on the other”.

If, therefore, the president had to appoint an independent and honest head of the NPA, it was rational to expect him to take into account evidence suggesting that a person may not meet those criteria before appointing them.

The court was clearly concerned that it may be accused of interfering in the president’s right to make appointments and so it noted that the rationality test – in which courts do not decide whether a person is right for the job but look at whether the president took the decision to appoint them in a way which fitted the purpose of the appointment – was not trampling on an elected government’s right to decide.

It was “the least invasive form of legal scrutiny”, which recognised the separation of powers between the presidency and the courts. So it was not telling the president who to appoint, it was insisting merely that it was the right of the courts to test whether the process of taking the decision was reasonable.

This eases the fear that an elected government is being told what to do by the courts.

The court’s insistence that it will act if the president does not show that he took into account all the issues relevant to an appointment is surely one which most of us can accept even if there may be disagreements about whether the test is applied fairly in particular cases. So the judgment seems cause for celebration.

The courts have defended citizens’ rights by insisting that the government not appoint people to offices meant by the Constitution to be independent unless it considers evidence that they might be unfit for the job. The president has accepted the judgment. An attempt to replace the independent Vusi Pikoli with someone whose independence was in doubt has ended and the president will need to do more to ensure that those he appoints to these positions are committed to putting the interests of the people ahead of those of the politicians.

But the celebration should be muted. The judgment is a step forward for democracy and may have helped restore public confidence not only in the courts but in the NPA, whose independence was in doubt after Pikoli was fired – but we need to ask how safe democracy is if the courts are seen as the front line of efforts to ensure that the government appoints people who do not undermine citizens’ rights.

Some have described the court’s decision as a sign of “democracy in action”. It may be more a sign of democratic inaction.

In a strong democracy, citizens who don’t like an appointment would launch a campaign to convince public opinion to oppose it – if they won enough support, they would get the decision changed. The issue would be more democratic because it would be decided by many citizens rather than a few judges.

It would also be more effective and lasting - if a government feels judges are too independent it can always, over time, appoint other judges. If it is held to account by citizens, it cannot replace them with other citizens.

The courts will always have a role in protecting people’s rights - but as a support to action by the people, not a substitute for it.

Steven Friedman is director of the Centre for the Study of Democracy at the University of Johannesburg and Rhodes University

Source: The New Age