Mhambi has been redeployed.

Sunday, June 15, 2008

Hlophe - the slope just got slippier

"But where's the hope going to come from?"...

Hardly two weeks have gone by since FW de Klerk in an BBC radio interview declared to a concerned Evan Davis that South Africa's legal institutions are sound, and that these legal institutions would be the ballast, the anchor of our ship South Africa, to the certainties and protection of constitutional democracy.

constitutional court
Originally uploaded by saajana.

Hardly had he and today we have the biggest Constitutional Crisis in the country's history. How did it come to this?

Is it because ours is a Constitution born slippy? A slip-shod job at the negotiation table in Kempton perhaps? Were all the legal nuts and safeguarding bolts not fastened? Did we not need more rules on legal decorum and regulations to bolster the importance and sanctity of the judicial institutions?

Sadly, Mhambi does not think it would have made a difference.

All functioning societies require the actors in it to buy into the social contract. To step back from the brink in times of friction for the sake of the whole. It's a kind of rational thing to do.

No state can police everybody. For the great and the good and the great unwashed alike, rules should be obeyed more by way of self imposed deference for them, than by enforcement.

It's supposed to be only crooks that the state has to hold in check through force. And these felons should not be able to count on silence and even acceptance from sections of the ruling elite and society at large.

But ours is a country where Police Chiefs and Judges toy with the law. Ours is a country where senior public officials denigrate their office by refusing to resign until they are proven guilty. Ours is a country where big men are more than big laws.

What exactly transpired when the Constitutional Court decided to release a media statement that they will complain against Judge Hhlophe to the Judicial Service Commission instead of just complaining is unclear as of yet.

But with the benefit of hindsight it was most probably a mistake.

But far greater was the mistake of the JSC not to give Judge Hhlophe the boot earlier, which was after all a clear cut case on more than one serious ground.

But Judges like Bernard Ngoepe seemed more concerned about how it would look to the public if it came to be known that a Judge had not filled in his tax forms than whether he was fit for office.

Transcripts of the hearings show that Judge President Howie asked whether Hlophe had declared his income from Oasis (the company he was earing money from for which he could not produce written consent) for for tax purposes.

When Hlophe sought to evade the question, saying “I have not had any queries raised from the tax authorities”, Howie refused to let him off the hook, demanding that he provide the relevant information to the commission.

Ngoepe later tried to get Howie to back away from this line of questioning, saying he was “quite uncomfortable about such direction because what if someone hears that he has not disclosed that in his tax returns, which means a criminal offence ...”

Er... yeah

That a Judge would approach members of the Constitutional Court Bench in such a brazen fashion and threaten them as is alleged (That he would be the next Judge President and therefor keeper of their judicial fortunes), boggles the mind. I mean if somebody had told me that would happen circa 1994, I would have thought them deranged or racist rabbit hole fantacists.

That the two new Constitutional Court Judges Nkabinde and Jafta allegedly approached by Hlophe now sent a statement to the JSE that they are in fact not complainants and don't intend to give a statement (other than this one), is of course also the stuff of rabbit holes - a very deep stomach turning one.

According to City Press, this came as a surprise to the rest of the Court. I bet.

The JSE has in the meantime asked for the Court whether they should proceed, it can not operate without evidence. That both of the statements made it to the public domain is also extremely peculiar and irregular as they were both intended for the JSE's and parties concerned eyes only.

According to City Press the Constitutional Court wants to fight on, claiming that the two Judges do not have a right to remain silent in this context. I would think that Legal Philosophy would support that view. How could two Judges' silence hold the countries future at ransom? Their silence makes a mockery of Constitutional Court Judges's roles as protectors on the Constitution.

And legal philosophy is what we will need to look to because this is legal terrain so new that little precedent exists.

Bayart points out in the Criminalization of the State in Africa that strong states is antithetical to how much of power is organized in Africa. Real power is often wielded in opaque networks behind the scenes. And power is all that matters.

Open Constitutional Courts have a tendency to get in the way of this kind of power wielded to benefit predatory elites.

This is another sign post on the road to hell.

We might well ask again, where will the hope come from?

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