The rule of law is our strategic leverage. The idea that the law can be an instrument to correct perceived political drift or worse, gerrymander political outcomes, is an unsettling bastardisation of rule of law and undermines the trilateral principle of separation of state powers.
Law should govern our polity according to an objectively determinate set of axioms, not barely concealed cultural-political prejudices masquerading as high mindedness. The durability of the legitimacy of the judiciary is contingent on its ability to be a dispassionate arbiter of disputes.
Leading up to the 54th elective conference of the African National Congress we have been treated to a farce of judicial activism, clumsy in its zeal for ‘messianic’ outcomes but inconsistent in the application of the law. The consequences of this transparent and shameful insinuation of the judiciary in the political dynamic of the ruling party is of course the erosion of trust in an indispensable institution. This is to say nothing about the cumulative debasement of an otherwise exalted organ of state power.
The judiciary appears to be treading a path already chartered by another once critical and respected democratic institution, the media, which has all but seized being purveyors of truth or reality but have become bald propagandists more concerned with factional narratives than the truth.
These institutions, particularly the judiciary, are a product of heroic sacrifice by legions of ANC cadres and the fortitude of its leaders. Were we of a cynical hue we’d attribute the conduct of the judiciary and the largely discredited and unreconstructed media as part of the seditious current by elites sweeping through SADC. History will recall that our elites, and erstwhile instructors in democratic culture, welcomed the recent coup in Zimbabwe with breathless delirium.
The legal process should always be JUST, but it cannot and must not always produce outcomes that will please the chattering classes. Let us preempt the peanut gallery who will glance this text and find us ‘threatening’ the independence of the judiciary. We are doing no such a thing. We are merely observing a disturbing phenomenon which if not checked will grow into a cancerous lump and threaten the stability of the republic.