Politicians should question the judiciary but not exploit it

Parliament sucks and the executive is corrupt. We have sufficient evidence for that statement.

Now we have a speaker publicly questioning the chief justice’s impartiality, compounded by a public protector questioning the entire judiciary and a bunch of other jabs at our benches.

It’s nothing the judiciary hasn’t weathered before. Even Mogoeng Mogoeng had to answer for his Christian faith despite his judgments, including one which abrogated the action of adultery, not always being biblical.

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Is the bench captured? It’s tough to say but the kind of people who are saying it is worryingly telling.

Those raising questions about the bench are not who I see prioritising service to country over service to self. There’s that phrase about a pot calling a kettle black – though in this case, the pot is rusty and isn’t even looking at the kettle. If the water must boil, the important question is where it is best to boil. Having the pot and kettle battle it out among themselves doesn’t get the water boiled any better nor faster.

Casting doubt on the independence of the judiciary does not make our democracy shine any brighter. One must be careful to draw a stark line between casting doubt and actively questioning though.

The two are not the same and questioning the independence of any state institution is a vital part of the democratic process. We need to satisfy ourselves that we may trust in our state institutions because they’re supposed to work for us. However, when doubt is cast upon them for the sake of fighting political battles, that does nothing for us. That merely aides the political powers that be, typically at our expense.

What’s scarier is that it is easy to draw the public into a false idea that casting doubt and asking legitimate questions are the same thing.

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In the days of parliamentary sovereignty, the rule of law was in existence but hardly applied if it wasn’t to the satisfaction of the people in power. If they didn’t like something, they got together and changed the law and we had to accept it. With our constitutional dispensation, we welcomed a thought-out manner of separating powers to prevent the abuse of power by any branch of state. The judiciary forms a serious part of that.

It’s the judiciary that is the public’s route to stop government corruption and stop Parliament from stepping on our rights. It’s the judiciary that let us have ARVs when the government didn’t want to, lets us smoke weed when government was too busy doing nothing and empowered our public protector to uhhhh, protect us.

This is why the independence and power of the judiciary is of vital importance. Were the judiciary is not independent, we could effectively enjoy parliamentary sovereignty ala 1970s again. The same if the judiciary was considered captured with no public support.

We could have our political leadership nuke the judiciary for their benefit but we need to ask why they’re doing that. Alternatively, we could have the political leadership bring evidence and ask relevant questions about the judiciary’s independence and hold them to account without trying to paint the judiciary as captured in its entirety.

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Sure, judges are people and they come with their own issues. It seems odd to jump to an assumption that the bench is biased because were that assumed, no person would be suitable to act as a judge.

It’s also easy to paint a picture of being biased if the same good people are called upon to judge the same bad people because with an objective set of laws, the bad people are mostly going to be called out.

So sure, exercise the duty to question the judiciary because that is an important part of the job but don’t weaponise that duty to suit yourself to the detriment of the democratic process.

Oh, and if you don’t want the commissioner of a state commission of inquiry to make statements as a commissioner because they’re a justice of the court… maybe don’t appoint a sitting justice as your commissioner in the first place!

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