Nkosikhulule Nyembezi
For some time, members of the National Assembly knew there was an issue with their uMkhonto weSizwe Party (MKP) colleague, Dr John Hlophe.
But, most hesitated to publicly criticise or oppose a nomination of one of their own to represent Parliament in the Judicial Service Commission (JSC).
This person is a legend in national politics, after all, someone with a storied legacy as a seasoned judge and legal scholar who, despite his impeachment as a judge for previous conduct involving a questionable conversation with other judges about his corruption-accused party leader, reappeared in service of his party leader as the MKP’s public face in Parliament.
He is determined not to go anywhere voluntarily, not ever, even as opposition mounted. He might lightly dismiss it as a mere storm in a teacup.
Besides, many MPs faced with having to support or oppose Hlophe’s nomination thrive in political party environments polluted by unethical conduct and nudging aside someone with questionable ethical credentials could prompt uncomfortable self-reflection.
Even when the issues reached a point where they were too obvious for anyone to ignore, none with a recent close relationship with MKP leader Jacob Zuma wanted to be the first to start a public campaign to push out a potential friend and ally.
The dilemma most politicians are now facing regarding what to do about Hlophe’s teetering parliamentary role is a familiar one for most of the newly elected MPs, who have, over the years, watched many of their colleagues hold onto positions of political power as cadre deployees – even to the extent of later serving in committees responsible for holding them accountable in one way or the other, including recommending their removal from office and prosecution.
Still, since Hlophe’s nomination to the JSC, most political parties have appeared to be consulting the same handbook they used previously in dealing with other politicians with questionable ethical credentials. They have stayed mostly silent as they fretted privately that the nominee’s feeble designation could cost them public trust and their chance to regain the dignity of a forum on the brink of being dysfunctional under political interference from different fronts.
The strength of this political calculation is especially remarkable, given the mixed messages from political figures. But the dynamic helping to keep most politicians from publicly calling on Hlophe to withdraw is similar to the one that surrounds cases of other politicians in public office despite their questionable credentials.
The factors that fuel it have helped create the country’s unaccountable elite political class, including an unwillingness to question incumbency and accumulated power; inner circles of staff members who are invested personally and politically in protecting their political principals with questionable credentials; and a sense of loyalty and legacy that often trumps accountability.
In a letter to the organisations –including the Council for the Advancement of the SA Constitution, Judges Matter and the Helen Suzman and Ahmed Kathrada foundations –National Assembly Speaker Thoko Didiza told civil society organisations that there was no legal obstacle stopping Hlophe and that, ultimately, the decision to designate Hlophe to the JSC rested entirely with the National Assembly as a collective.
As of now, it appears that the objectors are going to Hlophe with an argument that “We do not think you are up to it.” And he appears to say, “I know I am up to it – and what is more, neither the Constitution nor the rules of the National Assembly prevent me as an MP bound by my oath of office.”
For now, he has a stronger hand than they do.
The MKP aggressively played that hand on Wednesday, effectively calling the bluff of objectors and pointing out that Hlophe’s legal qualifications made him an appropriate fit for the JSC.
Yet the problem runs deeper than bickering among parties. While Hlophe’s designation might appear to have neutralised opposition in Parliament, opposition outside has advanced significantly not only on public interest grounds but also on sectoral interest questions that characterised his 16-year impeachment battle. More ructions are surely to come.
In this extreme case, however, all of that is tempered by long-standing perceptions among some politicians and their supporters that this opposition to Hlophe is a sequel to his persecution as an independent thinker willing to challenge the white establishment.
Some organisations opposing Hlophe expected the dam to break on Wednesday when the National Assembly debated the matter. But, even as they agreed with points made by Didiza in her letter, they also said they never underestimated members’ ability to get cold feet.
Until then, at least, they appear to be hoping that members of the more rambunctious Parliament – four of whom openly opposed Hlophe’s designation – would be the ones to generate the pressure that would lead Hlophe to withdraw.
The Freedom Under Law is challenging in court Hlophe’s designation to the JSC on the grounds of rationality and the rule of law.
It notes that all parties that did not object to the nomination of Hlophe are, by their silence, implicated in this “egregious” decision. “The designation of members of the National Assembly to the JSC is not equivalent to assigning members to portfolio committees within the National Assembly. The Constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness.
By designating an individual who has been found unfit to be a judge to the body responsible for the selection of judges, the National Assembly has fallen short of this duty.”
The stand-off is reminiscent of other politicians’ past defiance in the face of questions about whether they should stay in public office after revelations about their mishandling of public funds.
And just as these politicians have been doing under the protection of their political principals, Hlophe appears to be daring his opponents with concerns to complain to the MKP president. They will never do so, and Hlophe will publicly stand by his decision to serve in the JSC.
As of Wednesday, none of the objections have been successful, and candidates for judicial appointments will answer Hlophe’s questions about their fitness to hold office. What comes next is unclear.
But one thing is certain, thanks to an energetic campaign by objectors and a healthy dose of public vigilance – South Africa will not be getting a free-for-all Parliament, executive, judiciary and JSC. And that is something to celebrate.
* Nyembezi is a policy analyst, researcher and human rights activist
Cape Times