A worrying trend in SA’s political public discourse is beginning to emerge. There have recently been instances where arguments are advanced suggesting politicians not be allowed to participate in certain governance processes.
A recent example is calls for the removal of members of parliament from the Judicial Service Commission (JSC), a body responsible for interviewing candidates for positions in the judiciary and dealing with complaints brought against judges.
The calls come in the aftermath of the interviews by the JSC of four candidates selected by the president, Cyril Ramaphosa, to fill the vacant role of the chief justice of SA. The candidates are justice Mbuyiseli Madlanga, judge Mandisa Maya, judge Dustan Mlambo and acting chief justice Raymond Zondo.
The JSC is intentionally constituted by a cross-section of people who represent a variety of interests and views because as an independent branch of government it should go without saying that the judiciary should not be self-contained and accountable to itself.
Some people may argue that judges are professionals with skills best judged by others in their profession, but as functionaries of the state, judges serve the public and should do so in ways that are accountable to the public and other branches of government, rather than to their peers alone.
The separation of powers doctrine does not only outline different roles for the different branches of government, but instruments for each to arrest the power of the others through checks and balances.
So, among the line-up of JSC commissioners that include jurists and members of the bar, are representatives for the president, a member of the executive in the form of the minister of justice and correctional services and various members of the National Assembly, which in this round of interviews also included the speaker of the House, Nosiviwe Mapisa-Nqakula. MPs do not only represent their parties, but as representatives in the “People’s House” they are duly elected to represent the people of SA.
Over four days, each candidate was interviewed for several hours, with questions that included enquires about important cases they had presided over, their roles as leaders of administrative aspects of their work, questions about their track records of activism and their readings of social trends, especially related to gender empowerment, flowing from Maya's candidacy as the first woman to be interviewed for the judicial top job.
Tensions began to rise on days three and four, when Mlambo and Zondo were interviewed. Questions about rumours of sexual misconduct and personal relationships with politicians led to some heated exchanges not only between the panel and the candidates, but also between members of the JSC itself. The main protagonist or antagonists, depending on who you ask, included EFF leader and member of parliament, Julius Malema, senior counsel Dali Mpofu, representing the bar, and minister of justice Ronald Lamola.
It is the fallout of these interactions, regardless of one's view on their correctness, that is of interest here. Assuming the worst, that one or more politicians used the interviews to play politics, a call to remove politicians from the JSC by people like Adam Habib, former vice chancellor of Wits University, the Council for the Advancement of the SA Constitution’s (Casac) Lawson Naidoo and Helen Zille, the federal chair of the DA, who ironically have representation in the JSC, borders on an overreaction and is anti-democratic.
The purpose of a public process is precisely done to enable accountability for the conduct of all member of the JSC. So, while with voices critical of the questions, like those that used rumour and conjecture rather than fact are malicious politicking, it is possible to hold the people who made those comments accountable, rather than suggest that there is no place for politicians in the JSC.
Any suggestion that politicians cannot be trusted to be fair in such a process must be met with resistance, that both questions why the same elected politicians should be allowed to make recommendations for the appointment of the SABC board but cannot interview judges.
If thousands and in some cases millions of voters have entrusted their power of oversight to Malema and other politicians, surely to deny elected politicians seats at tables of governance is to disenfranchise those voters and all South Africans MPs represent.
While we narrowly, and perhaps even justifiably, take aim at politicians to hold them accountable for what they use their power to do, we should remember that those politicians do not represent themselves. And if we do not like the way they represent us the remedy is not to continue to elect them only to tell them not to participate in governance but to elect people we do trust or at least can hold accountable in meaningful ways.
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