Nkosikhulule Nyembezi
Let us be under no illusion about the divisive political game in Parliament as it starts a parallel impeachment process for Western Cape Judge President John Hlophe and retired Judge Nkola Motata.
The Portfolio Committee on Justice chairperson Bulelani Magwanishe said Parliament will conduct the process in terms of Section 177 of the Constitution and highlighted the importance of adopting the steps, as he said it will be the first time since 1910 that MPs investigate and vote on the impeachment of a judge.
What is unsaid in the media statements, but streaming through it like shafts of light through a broken roof, is clearly that in our divided society, there will be those who say they will not forgive MPs if they fail to stop the judge’s evasion ploy that has continued over many years.
Because of deep divisions, let us conduct a dark thought experiment by imagining that judges Hlophe and Motata had successfully blagged and bullied the MPs into allowing them to escape their gross misconduct committed almost 17 years ago.
Some would say our democracy would be very sick this time. The MPs would be in disrepute with the public, as they expect a thumping two-thirds majority in the National Assembly to eventually vote in favour of the impeachment in the coming weeks.
They would argue that we would be looking at terrible damage to parliamentary scrutiny of the executive and the judiciary, which vitally depends on upholding the principle that MPs and the public can expect judges to uphold the constitution and the dignity of their judicial office.
Yet, some in our society would differ in the same way they did when the Judicial Services Commission found Hlophe guilty of misconduct, for attempting to improperly influence Constitutional Court Justices Bess Nkabinde and Chris Jafta to decide matters that were then before the top court in favour of certain litigants almost 15 years ago.
The events leading to Motata facing a vote of impeachment are less controversial and date back to January 2007 when he crashed into the wall of a Johannesburg home and made racist comments to the homeowner. He was later convicted of driving under the influence.
The JSC initially found Motata guilty of misconduct after the 2007 accident. Freedom Under Law challenged the JSC finding in the Supreme Court of Appeal as if to stir up controversy. This challenge led to a recent court decision that he committed gross misconduct and Parliament should begin the impeachment process.
Many more have called for the two judges’ removal on the same grounds, but they did not want to poke the beast. The difference between misconduct and gross misconduct is fundamental, not procedural, and its effects on the outcome of the impeachment proceedings will be profound.
It has always been the assumed basis of our constitution that no one with questionable conduct such as that attributed to Hlophe or Motata could ever come to sit on the bench, but that is what we now have to face up to.
Differences aside, if our society had let off the hook such gross misconduct, it would not have taken long for unbecoming conduct to become institutionalised in the judiciary. So the excoriating decision of the committee to institute the impeachment proceedings against the two judges is not just right, it is also imperative. It is crucial that the committee members spoke with one voice so far (notwithstanding a few exceptions) – and they did so by producing an overwhelming majority report and adopting a framework that will guide the process.
They must be meticulous in their assembly and examination of the evidence – and they appear prepared to hear the JSC briefing on the procedure and the recommendations for impeachment. They must deliver a recommendation commensurate with the severity of the cases – and are suitably qualified to do so.
After years in the making and running to over 100 pages, the reports on Hlophe and Motata are eviscerating about the scale and depth of their gross misconduct.
During this impeachment process, many expect the MPs to do more than throw the book at the judges; they must hurl a library at them. And justly so.
The reports on each judge combine what we already know about each one’s misconduct with previously unhighlighted detailed evidence to demonstrate that each is impeachable.
Previously, Hlophe greeted the decision and the process building up to his impeachment with defensive tactics, screaming about the state’s constitutional duty to pay his legal costs, that his removal from office would be a “momentous” step, and that he would have no recourse should a two-thirds majority of MPs adopt a resolution in line with the recommendation of the JSC.
His supporters are likely to continue protesting. Victimisation complaints are their cloak to disguise political ambitions to change our country into a banana republic.
Surrounded by individuals set on putting a torch to the constitutional order, they are using propaganda to set the people against Parliament and create chaos, which will emerge a survivalist democracy content with meeting the minimum standards of our aspirational values.
On the contrary, those on the side of the Freedom Under Law, which has been at the forefront of removing Hlophe from office, will see his impeachment as one of the brighter moments in the recent history of our democracy.
We are amid a titanic struggle in our society. The judiciary and many other pillars of democracy are under threat. On the one side are bad actors who seek to advance themselves and their causes by peddling self-serving political agendas, mendacity and fakery. Resisting them are those who prize personal integrity, ethical conduct, facts, veracity and rules. The defenders of integrity in public office must prevail over the forces of darkness.
Nyembezi is a policy analyst, researcher and human rights activist
Cape Times