I am no expert in legal matters, and I have not done research on the issues around the law in our country. But my impression as an ordinary citizen is that things are not well at the bar - so to speak.
In talking to other ordinary citizens, a few issues keep cropping up. I share them with the hope that these impressions are mostly wrong.
The most recent matter is the inability to draw enough candidates for vacancies in the constitutional court. I think they advertised twice already.
This is a serious matter as we all know the constitutional court is the most important court when it comes to the rule of law and the protection of the citizenry against public or private assaults on their basic human rights. This court must draw the sharpest minds. Here we need the cream of the crop. Here we require fiercely independent jurists who can judge without having to look over their shoulders.
Under ordinary circumstances, one would have expected a high interest amongst the best legal practitioners to make themselves available. The question then arises: Why not?
Do not come with the story that candidates fear the public questioning and scrutiny of their previous judgements per se. This is what the legal profession does best: Asks good questions, analyses and comes to fair conclusions. Candidates should in fact welcome the prospect of a public scrutiny and subsequent display of their intellectual and jurisprudent abilities or weaknesses (no one is perfect). So what is the real reason for non-participation?
It is the fear that, in fact, what the questioning and appointment will do is not find the most suitable candidate. The fear is that legal expertise and seniority (experience is a crucial dimension of legal ability) will not count as they would under normal circumstances.
But, why not?
Because judges and others have seen with their own eyes how political considerations have become more and more important under the guise of transformation. Transformation then does not actually imply a diversified judiciary - that is crucial for our nation - but those who would not confront and limit the ever deepening yearning for state power. The spectacle of the chief justice appointment is still fresh in their memories.
The worrisome factor is not that the government has succeeded in designing and executing judges' appointments in ways that compromise independence. The real concern is that the sharp and independent and experienced judges have now implicitly succumbed to this apparent misuse of state power. By not making themselves available, they actually leave the door open for possible lap-dog candidates who will make up the numbers, but who will slowly over the next decade erode the power of the constitution.
Part of all this, is the erosion of the stature of the bench. I am not talking about order in the court and respect for the person presiding, from the lowest to the highest court. Though sad, I am also not referring to judges' misbehaviour in public (all professions have their minor number of offenders). I am also not referring to racial fights amongst themselves (though one would have expected a higher level of interaction from these esteemed persons).
I am talking about a deep feeling by citizens that the judicial system has failed and is failing them.
The people find the slow turn of the wheels of justice very, very frustrating. There are cases where people died before their matters were heard four or five years down the line. In some cases this has to do with actions beyond the direct control of the courts (police dockets, witnesses, etc.) but we still feel it takes too long get an answer.
That is why some communities involve themselves in mob justice: it may be wrong, but it is quick.
The people also feel that justice is not actually blind, but operates with eyes wide open as to the depth of the pockets of those involved. It is disturbing to find that the outcome of a case does not always hinge on the truth, but on the cheque book that can buy the best advocate. And there is a deep feeling that state advocates are not up to the fight when they are opposed by the million rand men.
The people also tell me that government officials in high places, who need legal representation, do not follow the principles of transformation. (I have not checked on this). They ask: How many officials have appointed women or black advocates when they are in trouble with the law? So transformation seems to be good rhetoric until their own interests are at stake.
For the sake of our nation and its future, I call on our friends in the judiciary to wake up and take responsibility for the task at hand.