Africa, Headlines, Human Rights

RIGHTS-SOUTH AFRICA: Judging the Judges

Moyiga Nduru

JOHANNESBURG, Jan 12 2005 (IPS) - A statement by South Africa’s ruling party concerning judicial reform has sparked heated debate in the country.

The war of words erupted after the African National Congress (ANC) said in a statement to mark its 93rd anniversary celebrations Saturday, that the judiciary did not share the aspirations of those who fought to end apartheid. This was the system of institutionalized racial segregation that prevailed in South Africa for over 50 years until 1994.

Most of the country’s judges are white.

“The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems,” said the ANC.

“If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole,” the party added.

The Jan. 8 statement came after disagreements between black and white members of the bench over certain rulings involving the government, notably in a case that has pitted pharmacists against the minister of health, Manto Tshabalala-Msimang. The case stems from government’s efforts to control the price of medicines.

The Department of Health has said that it will take the matter to the Constitutional Court – this after the Supreme Court of Appeal ruled in favour of pharmacists, who are opposing the controls. The Supreme Court ruling, delivered by a white judge, overturned an earlier decision by two black judges.

Local media reports have also quoted ANC spokesman Smuts Ngonyama as saying there was widespread displeasure over judgements in which whites who were found guilty of killing blacks appeared to have been treated leniently by the courts – and given light sentences.

Certain commentators have drawn parallels between the ANC’s statement and events in neighbouring Zimbabwe, where judges have been the target of intimidation and harassment in recent years.

This followed rulings in which certain members of the bench declared illegal the invasion of white-owned farms that began in early 2000. The occupations were spearheaded by veterans of Zimbabwe’s 1970s war of independence and pro-government militants, allegedly to protest against racial imbalances in land ownership that dated back to colonization under Britain.

Government critics maintain that the farm invasions were masterminded by Harare in a bid to deflect attention from its policy failures ahead of parliamentary elections in June, 2000.

Zimbabwe’s judges also sided with journalists who found themselves the target of court cases for writing articles that authorities disapproved of.

In the face of intimidation by pro-government militants, several members of the judiciary have resigned since 2000, including former Chief Justice Anthony Gubbay and former Justices Michael Majuru, Fergus Blackie and James Devittie. They have been replaced by persons generally viewed as sympathetic to President Robert Mugabe’s administration.

However, Sheila Camerer – spokesperson on justice for South Africa’s main opposition party, the Democratic Alliance – says fears that the country is following in Zimbabwe’s footsteps are mistaken.

“No, we are not going that route. We have enough safeguards in our constitution to protect the independence of the judiciary,” she told IPS this week in a telephone interview from the coastal city of Cape Town, where parliament sits.

J.T. Nare, who researches law at the Pretoria-based University of South Africa, agreed.

“South Africa’s judiciary is robust. I don’t think it will succumb to state interference,” he said in an interview with IPS.

Camerer also believes that the South African media are sufficiently independent and active to help safeguard judicial independence.

For its part, the ANC followed up its anniversary message with a new statement – issued Monday – in which it denied that comments about the judiciary were directed against white judges.

“The (ANC’s) statement is neither a ‘threat’ to judges nor an ‘attack’ on white judges, as some have claimed. It is instead an honest assessment of the state of transformation within the judiciary, consistent with the long-standing policy objectives of the ANC and the requirements of (South Africa’s) constitution,” the second statement noted.

Nare believes greater urgency is needed in efforts to make South Africa’s judiciary more representative of the population, about three-quarters of which is black. At present, black judges reportedly account for just over a third of those on the bench.

Few appear to disagree with him.

“We have no problem addressing the racial and gender disparities in the judiciary,” says Camerer. “But we have a problem with political interference in the work of the judiciary."