The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.
Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.
The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.
De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.
Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."
With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.
On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.
De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."
Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."
Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."
It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.
Source: Mail & Guardian
Showing posts with label CASAC. Show all posts
Showing posts with label CASAC. Show all posts
Thursday, July 28, 2011
Saturday, March 26, 2011
Passivity over corruption imperils our constitution
Mamhela Ramphele: The level of corruption and mismanagement in public life reflect a dangerous tendency towards a culture of impunity.
The recent launch by the Council for the Advancement of the South African Constitution (Casac), of a campaign for an independent anti-corruption agency, is an invitation to SA citizens to commit to halting this dangerous tendency. Appropriately, the campaign began the week before the celebration of Human Rights Day. A culture of impunity for those abusing power and profiting from corruption is the antithesis of conditions that promote human rights. Various commentators suggest that South Africa is only following the usual post-colonial trajectory of former liberators abusing their power to enrich themselves and those close to them.
There are unfortunately enough examples of corruption, nepotism and mismanagement of public resources to support this view. The auditor-general, the Independent Complaints Directorate of the SA Police and the launch of a civil service anti-corruption unit by the Department of Public Service and Administration, all point to ineffective mechanisms for the enforcement of accountability. But there is nothing inevitable about this slide into impunity. The independent mechanisms to promote integrity and strengthen our democracy are alive and well.
The public protector's recent fearless report about wrongdoing in the procurement of premises for police headquarters by the commissioner of police is a case in point. The Constitutional Court ruling that the Hawks were not independent enough - in terms of constitution requirements - to investigate wrongdoing without fear or favour to promote integrity in public service, is another.
The case for an independent anti-corruption agency is a strong one. The proposed agency would have a triple mandate: public education; enforcement and prevention. The success of this agency would depend on the level of accountability to both parliament and civil society; the independence of the directorate and board appointed through a transparent public participation process; and adequate resources to discharge its mandate.
The culture of impunity is made possible by passive, uninformed citizens who tend to regard corrupt practices as normal to the business of governance. This tolerance is based on their experiences under non-democratic rule, and a sense of loyalty to those in power. This loyalty is fuelled by disinformation by some of those in power, that reporting wrongdoing is a betrayal of those who sacrificed for our freedom. Citizens are also made to believe that wrongdoing is necessary to right the wrongs of the apartheid past.
Enforcement is also severely constrained by public officials placing loyalty to their comrades above defending the constitution. Take the case of Bosasa, the service provider of the Department of Correctional Services, which was investigated by the Special Investigating Unit. Taxpayers have every right to demand that the recommendations of the 2009 comprehensive report into the procurement of these services, be followed.
Our disengaged attitude as citizens and taxpayers promotes this culture of a lack of accountability, which fuels impunity. Prevention requires the promotion of a culture aligned to the values of our constitution, which insists on equality before the law, respect for human dignity and the progressive realisation of socioeconomic rights. These values are violated every day by public servants who abuse national resources which are supposed to address the basic needs of the poor. Even more disconcerting is the failure of political leaders and those in authority to establish cultures in every tier of government to promote our founding values.
Seen from all perspectives then, I come to the unfortunate conclusion that the culture of impunity is fuelled by the sense of entitlement of those in power, who seem to believe society owes them a debt of gratitude for the freedom we enjoy. This conclusion is supported by the series of public scandals for which no one has been held accountable.
First, the arms deal continues to fester, despite evidence that, at the very least, a judicial commission of inquiry needs to investigate this matter. Second, the Travelgate scandal saw those involved in defrauding the taxpayer simply being slapped on the wrist. The abuse of travel allowances occurred in a parliament in which MPs are well looked after in terms of salaries and benefits. Third, the open fronting by the ANC of black economic empowerment under the aegis of Chancellor House violates a central pillar of the constitution: equality under the law.
The ANC, at its landmark 2007 Polokwane conference, resolved to promote greater transparency in the funding of political parties. But the voices within the ANC supporting the unwinding of the deals involved, including the lucrative Hitachi deal to build a boiler at Eskom's Medupi Power Plant, have been silenced. No progress has been made - as was admitted by the chairman of the ANC Ethics Committee, Professor Ben Turok.
Fronting in businesses involving state-owned enterprises such as Eskom, gives the ruling party an unfair advantage over opposition parties. This is a serious threat to democracy. Opposition parties have little chance of competing with an incumbent party that has deep pockets courtesy of the South African taxpayer. Undermining political competition erodes the very foundations of our multiparty democracy. In addition, the participation of the governing party in fronting BEE deals undermines its capacity to regulate and hold other fronting entities and persons accountable.
Good governance is seriously undermined by the failure to demonstrate intolerance for corruption. It lays the foundations for impunity - and corruption in the private sector cannot be addressed adequately by a government which is compromised by being seen to be involved in questionable deals. Nor can the work of transforming the inherently corrupt apartheid culture be accomplished by a government which has been compromised.
South African citizens have a responsibility to acknowledge this elephant in the room and deal with it before it harms our democracy irreparably. Let us campaign for the independent anti-corruption agency - as proposed by the Council for the Advancement of the South African Constitution. It will give South Africans the platform from which to educate themselves, enforce the law and prevent corruption in their midst. We dare not fail future generations.
Source: Times Live
The recent launch by the Council for the Advancement of the South African Constitution (Casac), of a campaign for an independent anti-corruption agency, is an invitation to SA citizens to commit to halting this dangerous tendency. Appropriately, the campaign began the week before the celebration of Human Rights Day. A culture of impunity for those abusing power and profiting from corruption is the antithesis of conditions that promote human rights. Various commentators suggest that South Africa is only following the usual post-colonial trajectory of former liberators abusing their power to enrich themselves and those close to them.
There are unfortunately enough examples of corruption, nepotism and mismanagement of public resources to support this view. The auditor-general, the Independent Complaints Directorate of the SA Police and the launch of a civil service anti-corruption unit by the Department of Public Service and Administration, all point to ineffective mechanisms for the enforcement of accountability. But there is nothing inevitable about this slide into impunity. The independent mechanisms to promote integrity and strengthen our democracy are alive and well.
The public protector's recent fearless report about wrongdoing in the procurement of premises for police headquarters by the commissioner of police is a case in point. The Constitutional Court ruling that the Hawks were not independent enough - in terms of constitution requirements - to investigate wrongdoing without fear or favour to promote integrity in public service, is another.
The case for an independent anti-corruption agency is a strong one. The proposed agency would have a triple mandate: public education; enforcement and prevention. The success of this agency would depend on the level of accountability to both parliament and civil society; the independence of the directorate and board appointed through a transparent public participation process; and adequate resources to discharge its mandate.
The culture of impunity is made possible by passive, uninformed citizens who tend to regard corrupt practices as normal to the business of governance. This tolerance is based on their experiences under non-democratic rule, and a sense of loyalty to those in power. This loyalty is fuelled by disinformation by some of those in power, that reporting wrongdoing is a betrayal of those who sacrificed for our freedom. Citizens are also made to believe that wrongdoing is necessary to right the wrongs of the apartheid past.
Enforcement is also severely constrained by public officials placing loyalty to their comrades above defending the constitution. Take the case of Bosasa, the service provider of the Department of Correctional Services, which was investigated by the Special Investigating Unit. Taxpayers have every right to demand that the recommendations of the 2009 comprehensive report into the procurement of these services, be followed.
Our disengaged attitude as citizens and taxpayers promotes this culture of a lack of accountability, which fuels impunity. Prevention requires the promotion of a culture aligned to the values of our constitution, which insists on equality before the law, respect for human dignity and the progressive realisation of socioeconomic rights. These values are violated every day by public servants who abuse national resources which are supposed to address the basic needs of the poor. Even more disconcerting is the failure of political leaders and those in authority to establish cultures in every tier of government to promote our founding values.
Seen from all perspectives then, I come to the unfortunate conclusion that the culture of impunity is fuelled by the sense of entitlement of those in power, who seem to believe society owes them a debt of gratitude for the freedom we enjoy. This conclusion is supported by the series of public scandals for which no one has been held accountable.
First, the arms deal continues to fester, despite evidence that, at the very least, a judicial commission of inquiry needs to investigate this matter. Second, the Travelgate scandal saw those involved in defrauding the taxpayer simply being slapped on the wrist. The abuse of travel allowances occurred in a parliament in which MPs are well looked after in terms of salaries and benefits. Third, the open fronting by the ANC of black economic empowerment under the aegis of Chancellor House violates a central pillar of the constitution: equality under the law.
The ANC, at its landmark 2007 Polokwane conference, resolved to promote greater transparency in the funding of political parties. But the voices within the ANC supporting the unwinding of the deals involved, including the lucrative Hitachi deal to build a boiler at Eskom's Medupi Power Plant, have been silenced. No progress has been made - as was admitted by the chairman of the ANC Ethics Committee, Professor Ben Turok.
Fronting in businesses involving state-owned enterprises such as Eskom, gives the ruling party an unfair advantage over opposition parties. This is a serious threat to democracy. Opposition parties have little chance of competing with an incumbent party that has deep pockets courtesy of the South African taxpayer. Undermining political competition erodes the very foundations of our multiparty democracy. In addition, the participation of the governing party in fronting BEE deals undermines its capacity to regulate and hold other fronting entities and persons accountable.
Good governance is seriously undermined by the failure to demonstrate intolerance for corruption. It lays the foundations for impunity - and corruption in the private sector cannot be addressed adequately by a government which is compromised by being seen to be involved in questionable deals. Nor can the work of transforming the inherently corrupt apartheid culture be accomplished by a government which has been compromised.
South African citizens have a responsibility to acknowledge this elephant in the room and deal with it before it harms our democracy irreparably. Let us campaign for the independent anti-corruption agency - as proposed by the Council for the Advancement of the South African Constitution. It will give South Africans the platform from which to educate themselves, enforce the law and prevent corruption in their midst. We dare not fail future generations.
Source: Times Live
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