Why the judiciary must have an anti-government ‘agenda’


Recently, the African National Congress’ Secretary General Gwede Mantashe stated in an interview that the South African judiciary at times acts in an anti-government and anti-ANC manner. He went on to say that if he had the authority to do so, he would have South Africa exit the community of nations which adhere to the Rome Statute and the International Criminal Court, as he regards it as “a tool in the hands of the powerful” to target Africa, Eastern Europe and the Middle East.

Interestingly enough, up until recently, Eastern Europe was never mentioned by those in the anti-ICC fold. This is largely due to the fact that nobody in South Africa has truly been paying attention to that international body until our current constitutional crisis began a week ago. The common narrative was that only Africans were being targeted by the international justice system, while Europeans and as is usually emphasized, whites, get away with genocide and mass murder. What they usually cite is the fact that “Tony Blair” and “George Bush” have not been brought before the tribunal and therefore a double standard should not be applied toward African leaders. In regard to the double standard, I agree, but allow me to show you where I differ quite passionately:

  • Barack Obama is rarely cited as an American who is getting away with genocide and mass murder. Not only has he vastly expanded the American drone program and in some cases escalated the War in Afghanistan, but he also attempted to put American soldiers in Syria. That is not to mention the fact that he quite happily became involved in Libya. Does his not-so-white skin endanger the anti-ICC narrative?
  • The ICC, clearly, does not single out Africans. In the words of Mantashe, the Middle East and Eastern Europe have seen ICC involvement. At least some level of consciousness has poured into the ANC.
  • Does the fact that one or two specific criminals are not being brought to justice mean that we must ignore all the others? Clearly, no.

However, I believe our focus should be on our domestic court system rather than the International Criminal Court. The ANC government has openly and clearly violated a standing and effective order of court, and have gone on, in various capacities, now including their Secretary General, to justify it. This episode has led to the reemergence of the narrative that the judiciary is “untransformed” (this is code-talk for the fact that the judge who issued the order was white), and that it is acting “anti-majoritarian”. Mantashe accusing the courts of being “anti-government” is a pretty moderate accusation in this case.

But the fact that the courts – in fact, any properly functioning court system anywhere in the world – act counter-majoritarian is most certainly a good thing. The judiciary is not a representative of the people, and it was never intended to be. According to the separation of powers doctrine, the legislative authority is responsible for democratic representation, and to a lesser extent, the President as well. The judiciary is an interpreter and an adjudicator of the law – our constitutional law, our common law and our legislative law (as passed by Parliament). It need not represent the opinions of the majority or give effect to the wishes of the majority.

It is a good thing because the consequence of any unbridled democracy or, as I like to call it, populacy, is the erosion of minority and individual rights. The Constitution is not a self-executing law. My legal interpretation professor described it quite well (and I paraphrase): ‘when a constitutional provision is violated, a laser beam doesn’t shoot out of the Constitution and punishes the violator’. The closest thing we have to that ‘laser beam’ is the judiciary. It interprets and enforces the Constitution – something which Parliament and the executive (and unfortunately, the judiciary itself in some instances) have shown little interest in doing.

Without the judicial arm of government having the ability to order the legislature and the executive to act in accordance with the law as it stands, our Constitution, our law and the rule of law are meaningless. The current constitutional crisis has shown that we need a strong and independent judiciary with anti-government ‘tendencies’. The negative liberty rights and the justice rights in our Constitution are by their nature anti-government and must be enforced by an anti-government body. A judiciary which is the friend of government is simply useless.