Unless he has changed his mind, President Jacob Zuma resents the Constitutional Court. In fact, he wanted to review its status as the highest court in the land.
He doesn’t view this court as a key institution of a democratic state. He sees it as a bunch of individual judges with a twisted ideology and vendetta against him.
In an interview with me on April 8, 2009, a day after his criminal case was dropped and a month before he became the president of the country, he expressed some outrageously unsophisticated views about the role and the hierarchy of the judiciary.
“If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at, because I don’t think we should have people who are almost like God in a democracy… Why are they not human beings? I don’t want to debate that now, but at the right time I’m keen to engage them before the issue becomes public.
“Because… you can have a judge of whatever level making a judgment (and) other judges turning it and saying it was wrong. (This) just tells you they are not necessarily close to God. And therefore we have to look at it in a democratic setting; how do you avoid that?” Zuma said, adding that he wanted the Judicial Service Commission to review the status of the Concourt.
He was angry, petty, vindictive, naive, irrational and prickly.
He also made it clear that he would never forgive Deputy Chief Justice Dikgang Moseneke for expressing what appeared to be innocuous comments about his role as a judge.
Maybe Justice Moseneke was wrong. Judges cannot avoid being apolitical, but they should remain non-partisan.
But Zuma took it personally, believing that Justice Moseneke was raising the middle finger to him.
I asked him directly whether he would appoint Justice Moseneke, and he said: “I think I will be very sensitive (to Justice Moseneke’s statement). And I think that is precisely the reason why we always say judges should know what they say… You can’t just stand up and say I don’t care what this ANC (sic), and it is a ruling party. You are just declaring war. Why should you say that when you are a judge?”
Granted, the president should appoint his preferred chief justice, who is in sync with his political project.
For instance, the ANC is firm on the transformation of the judiciary.
Therefore, we cannot expect the president of an ANC-led government to appoint a racist, unreconstructed apartheid-era judge to the position of chief justice.
And transformation is a political project. However, I still believe the president’s judgement on Justice Moseneke was clouded by his personal feelings and less to do with any ideological rationality.
There is nothing wrong with the president making a personal choice.
But he must not confuse his pettiness with substance.
He must also be reminded that Justice Mogoeng Mogoeng is just another judge on the Bench – as the judgment that ruled against the reappointment of Judge Sandile Ngcobo has attested.
Justice Mogoeng’s appointment as chief justice is unlikely to tilt the court’s values and attitude.
I also fail to understand how Justice Moseneke, if he were appointed, would frustrate the ANC’s agenda.
As Zuma pointed out at the judicial conference last month, judges neither formulate nor change government policies.
But the president must be reminded that it is the judges’ role to restrain excesses of the executive and ensure that their policies adhere to the constitutional prescript.
It is ironic that Zuma seems to have forgotten what he told me in another interview in 2008. He wanted judges to remain judges. “You can’t be my friend, you’ve got to look at things dispassionately, exercise your duties without any influence. And we will always defend the judges.”
Perhaps he will understand the reality of this statement once the Concourt, led by Justice Mogoeng, rules against his government.