Veteran human rights lawyer George Bizos fired a blunt warning at the government on Friday not to undermine the judiciary, saying this had been a trademark of the apartheid regime and its predecessors.
Receiving an honorary doctorate from the University of Pretoria, Bizos said he wanted to weigh in on a public debate which had seen “unfair, unjust, and uninformed criticism” levelled at the Constitution and the courts.
Bizos took issue with a recent remark by President Jacob Zuma that the executive had the sole discretion to decide policies for the government.
Citing fellow lawyer Geoff Budlender, he said: “The theory that the executive has a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality.”
Bizos said last week’s appeal court ruling invalidating the appointment of Menzi Simelane as national prosecutions chief “serves as a reminder that the president is not above the law”.
Former president Nelson Mandela had shown no hesitation in abiding by a Constitutional Court ruling that overturned a law giving him the power to amend legislation by proclamation.
“The same day, Mr Mandela rushed to the television and radio stations of the SABC and declared… that he respected the decision of the Constitutional Court and appealed to all concerned to similarly accept the court’s decision.
“What a pity that some of Mr Mandela’s successors have not followed his example.”
In an acceptance speech that read in part like a history lesson, Bizos said tension between the judiciary and the executive went back to the 19th century.
He recalled that Paul Kruger, the president of the old South African Republic, had infamously tried to do away with the testing right of courts, calling it “a principle of the devil”.
Likewise, the apartheid regime had reacted with contempt when the appellate division struck down legislation disenfranchising coloured voters and passed a law enabling Parliament to review any such ruling.
“I hope that our current ruling party does not intend to follow either the regime’s example or that of president Kruger, but I do have some concerns,” Bizos said.
“The courts, as well as the individuals and organisations that bring human rights cases against the executive, to whom some impute false motives, have been subject to severe criticisms bordering on demonisation.”
He added: “All power, whether of Parliament, the executive, or the courts, must be exercised in accordance with the Constitution, which is the final word on the powers and roles of each branch.
“Judges’ interpretations support the rule of law, not executive whims, and judicial review allows courts to declare law or conduct that is inconsistent with the Constitution to be invalid.”
Bizos said he was concerned at Cabinet’s plans to assess the decisions of the Constitutional Court, and believed it was unnecessary as judgments were the subject of free public debate.
“Any such body may be construed as a challenge to the independence of the judiciary… At this stage there are more questions than answers.”
Most importantly, for what purpose and to what end was this body to be established?
“There is no reason to establish a new oversight body not provided for in the Constitution.”
Bizos is among the authors of the Constitution, whom he said on Friday Mandela had instructed to pen a supreme law that was good for all South Africans and not just the ruling party.
The state now had a duty to apply and respect it, he said.
“The Constitution can only provide a state with tools to govern. How those tools are used depends on those elected to govern.” – Sapa