Dr. Matthew Phosa

By Dr Mathews Phosa

The year 2007 finds us thirteen years into a process that was marked into history with the April 1994 elections.

It is part of history now that the ANC won a landslide victory then and became the government. In the two elections since then the governing party has increased it’s share of the votes each time.

In the current absence of meaningful opposition there rests on the party a huge burden to ensure that the democratic principles that it fought for, remains in place through appropriate policies and institutions.

We have to remind ourselves repeatedly that we cannot again be party to creating a system of government that is based on minority rule, on discrimination and on the abuse of human rights.

I do, however, believe that we have made substantial progress since the 1994 elections.

What are the results that we have seen since then:

• Three openly contested multi-party elections in 1994, 1999 and 2004
• The completion of an internationally recognized Constitution
• The protection of human rights in that very Constitution as well as in a number of institutions, notably the Human Rights Commission
• An open society within which the free exchange ideas are encouraged
• A strong South African economy
• Excellent relationships between the government and the private sector
• A South Africa that is active in building regional, continental and global institutions and policies
• A country that has become a preferred destiny for global events such as the Rugby World Cup, the Cricket World Cup and the 2010 Soccer World Cup
• A society that has moved from a polarized one to one within which people can live normal lives as equals

In short then, we have been the privileged participants and spectators of a process wherein we made the dramatic journey from a minority to a majority government without the trauma and doom that some predicted.

I am not pessimist about the South African society, nor am I pessimistic about our future. I am, in fact, optimistic our future and I am of the firm belief that we can further grow our economy, strengthen our government and enhance our growing role as regional leaders, leaders on the continent and a major representative of our continent on the world stage.

I say this not from the point of view that we have a 100% scorecard. There is huge room for improvement in governance, in further growing the economy, and in ensuring that economic growth is managed in such a way that those who have not yet found their voice in this new political and commercial environment are best served.

I am deeply grateful that I have been given the opportunity to serve in leadership roles in the Afrikaanse Handelsinstituut, and, lately, in the Chamber of Commerce of South Africa.

In both these institutions in organized business I have realized that there are great numbers of men and women who have a deep sense of community and of servitude, and who are willing to make sacrifices to ensure that more and more people are the beneficiaries of the policies of a government committed to serving them.

I do, however, want to concentrate today on issues which I believe that are of great importance to ensure that we serve democracy and protect it in such a way that we leave a governance system of substance to our children.

I will, therefore, confine myself to some comments on our broader judiciary system as it pertains to it’s interaction with human rights issues.

Let me start by saying that it is a wise person or governor who finds that perfect balance between the judiciary system in a country, and the protection of human rights at the same time. It is a question which has vexed philosophers and the brightest minds in the legal profession for many years.

Let us also state that the fight against crime is a very high priority in our country and that we need to

• create a legislative framework
• empower the judiciary, and
• assist our anti-crime officials

with every tool of assistance we can. That is my point of departure.
We have, however, seen a number of high profile court cases dealing with issues of human rights within the ambit of the broader anti-crime initiative. We have also seen that related issues such as the separation of powers within institutions has been raised to remind us that much care needs to be taken in the process of initiating and drafting legislation within a constitutional state.

The current legislative and institutional framework needs to be improved dramatically so that we can free and empower our crime fighters, whilst at the same ensuring that we do not impede grossly on the constitutional and human rights of those entitled to a fair trail under the Constitution.

Let me refer to a few examples:

As a lawyer it concerns me deeply that we have not yet learned from the challenge posed by the judgment on the Heath Investigative Unit, which in broad terms, specifies an institution cannot adopt different roles across divides that has become the cornerstone of constitutionally separated powers [roles] in the judicial system.

Simply put, you cannot be an executive of the judiciary system as well as the judge of it.

In terms of the powers of the Directorate of Special Operations it clearly has a challenge in the sense that it can be challenged on the fact that:

• It plays the role of investigator
• It plays the role of prosecutor
• It can play the role, in terms of certain of its’ powers to conduct hearings, of a judge

I have no doubt whatsoever that the current framework within which operations are carried out can be challenges successfully on the basis of constitutionality, the broader issue of the separation of powers, of legality, and of the infringement on the human rights of accused to a fair trial and fair administrative action.

With the current grey areas we set ourselves up for long hearings, long legal arguments, appeals to higher courts, and, in the end, appeals to the Constitutional Court. We need to protect the judiciary against an imperfect legal framework that allows for highly unproductive legal process.

In addition, I wish to emphasize that our country is nearing the stage where we will refine our legal system to such a level that procedural legal oversights, especially as it pertains to human rights, could result in cases being thrown out of court. I, for one, believe that we must either protect human rights to it’s fullest, or not at all.

We must, therefore, not hesitate with the process of streamlining and improving the legal framework as it pertains to especially criminal investigations and arrests and the procedures that lead to formal prosecution.

We can never divorce the legal system from the society in which it operates, as well as the values of that society. In this regard that substance and the weight of the media scrutiny on legal processes has also lead to a developing view and understanding from the public that dramatic media friendly action against alleged wrongdoers can never be a substitute for due and serious legal process.

The public hype that has been stoked around certain cases has been counter productive to sound legal process.

I also want to state categorically that whilst I believe that the dignity and honor of Judges and Magistrates should be upheld and protected at all time, and whilst we should enhance their status as interpreters of the law and the settlers of disputes, we should not, at any time move from the point of the view that they are, therefore, above the law.

I am strongly supportive of proposals that seek to expedite the development and completion of a code of conduct for Judges and Magistrates. Transparency and democracy can only be effective if it shines it lights on all men and women in positions of leadership, irrespective of their role in that democracy.

The current public debate regarding the public behavior of some office bearers of the judiciary should be seen in the broader context of the anti-crime crusade and is not supportive to those efforts.

I also want to repeat my view that all the institutions supportive of democracy should, from time to time, submit to the oversight of Parliament and when it does, to do in detail. Some of the current revelations regarding high profile commercial awards substantially harms the reputation of these Chapter 9 institutions to be viewed and respected as objective and thorough in their operations and investigations.

If parliamentary oversight is not enough we need some of form of closer oversight over the activities of the Chapter Nine institutions.

That supervision, or, in the case of the judiciary, the creation of an ethically sound and enabling environment must have as a point of departure that we should guard against ever again having public institutions created to protect the vulnerable that end up being nothing more than extensions of political decision-making.

I am attempting to make the point that we, as a society, must support our government with all our energy in their efforts to create a better society. In the absence, however, of effective opposition politics, we need also to be vigilant and sensitive towards ensuring that those governing institutions created to protect us and our democracy should do so, and be accountable also to us as voters in that process. Too much of the work of the Chapter 9 institutions is currently proceeding without political and voter supervision.

As a final remark: Decades ago when I served one of my life apprenticeships as a Premier I was a vigorous advocate for the cause of what I called “wall to wall” local governments.

In the current debate which the ANC initiated regarding the three tier system of government I wish to repeat my earlier wall submission. In addition, it need not be a clinical removal of one tier of government at the expense of another. It could simply be that we follow common sense and devolve as much capacity, skills and resources to local government in addition to the strong central government we already have. In such a scenario a new role for the provinces will emerge over time.