The war for judicial affection

Kgosietsile Ngakaagae | Friday June 16, 2017 18:18

Even the courts of law rely, in some measure, upon the existence of a credible threat of force where necessity arises for the vindication of their authority. The execution of the threat ensures temporal restoration of order where a breach has occurred or is threatened.

However, the threat is not necessary, and is in fact antithetic, to the sustenance and achievement of an abiding state of law and order. PoÅÇlitical and social order must rest upon a principle more humane and more civilised than a threat of violence. The invocation of force must be an exception to the general rule. In a democracy, the credibility of a government is equal to the strength of its oversight institutions. A government that fosters the structural and substantive independence of oversight institutions pleads an unequivocal case of innocence. On the flip side, the weakening of oversight institutions is confessionary and can properly be accepted as constituting an admission of guilt to whatever charge may be on the table. Social and political order rests not upon authority but upon strength and independence of oversight institutions both public and private. It is for that reason that the furore engulfing our Judiciary, as regards the appointment of Judges is gravely worrisome.

A weakened or compromised machinery for judicial appointments has the corollary that Judges ascend to the seat of adjudication tainted by reputational concerns emanating from source. Such a situation is gravely inappropriate. Judicial appointees must bring respect and public confidence to the courts. Such respect must be earned through years of exemplary service at the bar or in the occupation of other legal office. A Judge’s office should not double up as a platform for self-redemption and no judge should begin a judicial career with a public struggle to purge him/herself of the demons associable with the appointing authority. It is possible that a Judge so circumstanced, may be impelled to exhibit anti-establishment tendencies in an endeavour to earn public confidence and respect. Another Judge, similarly circumstanced, may be impelled towards pro-establishment tendencies as a protest against public prejudgement.

Again, another Judge may steer the middle course in an endeavour to project a semblance of personal fairness. In all the above instances, justice is rendered statistical as opposed to substantive. The ultimate casualty is the obligation to dispense justice without fear or favour. It is important for our government to keep its hands off the judiciary and to maintain as much critical distance from it as reasonably possible. The recent appointment of the Permanent Secretary to the President to the Judicial Service Commission is an obscene blight on image and esteem of the judiciary. The interplay between government and the judiciary must be limited to capacity development and the strengthening of its independence. Any further role, constitutes interference.  n independent justice system is critical for political and social cohesion. “The courts are the great levellers of all inequality”, social or political, and are the last resort for the vindication of the constitutional order. It is anomalous for a government to feel safe under national courts. Peace between government and the judiciary is pursued through constitutional observance and respect for the latter. The constitution, of which the courts are a guardian, was written not for, but against, the government. Rights, enshrined in liberal constitutions were not won by, but against, governments. That explains why rights are construed liberally and not restrictively. The higher Courts are not statutory but constitutional creatures due to their special role as custodians of constitutional rights.

In adjudication, perceptions matter a great deal. The adage that justice must not only be done but must be seen to be done is borne of that reality. That proposition does not only apply to disputes between parties but to the forum upon which disputes are submitted for resolution. A judicial system forged through an institution perceivably mortgaged to political or governmental interests does not furnish the citizenry with the certainty of judicial redress in the event of actual or perceived breach of their rights. A nation that stands on a firm constitutional foundation under a protective canopy of a credible judicial system has no fear of political unrest. Its government has no need for the assertion of authority or the use of force. National resources are rendered free for the improvement of the socio economic well-being of the citizen.

I make the afore-going submissions simply to highlight that the current furore over judicial appointments threatens our much valued peace and security as a nation. The egotistic manner in which the issue is being handled by government betrays neither political maturity nor concern for the nation’s peace, security and image. It is totally unconscionable for a government to be fighting with civil society over the influence or constitution of the judiciary. It is an area where government has and can have no lawful interest. The furore cannot be for the simple pleasure of appointing the judges. That is a purely legal question which thankfully, has since been resolved by our courts. This leads to the irresistible conclusion that the fight is over the heart and soul, if not a brazen rape of lady justice.