After years of tense deliberations between the South African judiciary and the government, the process of defining South Africa’s first enforceable regulations concerning judicial ethics is slowly nearing its end. On 19 January 2011 interested parties submitted proposals at a public hearing on the draft Judicial Code of Conduct and Register of Financial Interests. However the Register was not tabled at the hearing, as was expected. It appears that contentious issues, including allowing extra-judicial work, especially in the case of retired judges, as well as preventing judges becoming members of political parties, are contributing to stalling the final stages of the process.

The thorny issues around the proposed legislation raise questions about the relationship between the principles of judicial independence and judicial accountability. While these principles are often perceived as being incompatible, it must be recognised that they are inextricably linked. In fact, they are potentially reinforcing, helping to play a critical role in promoting public confidence, an essential building block of democracy.

The importance of the independence of the judiciary is unquestionable. Enshrined in the South African Constitution - the supreme law of the land - under section 165, there is greater responsibility on the judiciary in ensuring the separation of powers between the three arms of government and in serving as the ‘checks and balances’ on the executive and legislature’s power. Furthermore, according to Shamiela Seedat, Senior Researcher, formerly with the Institute for a Democratic South Africa (IDASA),“The judiciary is essentially developing and redefining South African jurisprudence and is therefore playing an important role in the transformation of the country into an open and inclusive constitutional democracy that guarantees the progressive realisation of social and economic rights”.

The rulings of the judiciary carry significant weight because legal precedence during Apartheid has limited relevance today. During Apartheid, the judiciary in South Africa was strongly aligned with the executive, and highly representative of a minority of the country’s population. This meant that the majority of citizens had very little confidence in the judiciary providing them protection against government abuse. Today, there is a realisation that the transformation of the judiciary to an independent institution is critical to the reconstruction of South Africa and the consolidation of democracy.

However, the independence of the judiciary is irrelevant unless it facilitates and maintains the public’s confidence. The power endowed in the judiciary gives rise to the sentiment that there should be a degree of accountability to uphold at least a minimum standard of ethics, says Seedat in a paper published by IDASA Judicial Accountability Mechanisms. The Code and Register are good strides in the direction of creating an open, transparent environment based on ethical standards, which is essential for ensuring accountability. According to Advocate Nichola de Havilland, Director of the Centre for Constitutional Rights, “ the Code is critical for ensuring that all judges conform to ethical standards that will promote public confidence in their independence. Likewise, the Register of interests ensures, in an open and transparent manner, that there is no conflict of interest”. In section 14 (3), the Code stipulates that “a judge does not directly or indirectly negotiate or accept remuneration, gifts, advantage, or privilege that is incompatible with judicial office or that can reasonably be perceived as being intended to influence the judge in performance of his or her judicial duties, or to serve as reward for them”. A practical example is the case of Judge President John Hlope who was found to be receiving remuneration from a private company. While the currently proposed legislation would clearly outlaw this because of the potential danger to lead to a conflicts of interest situation, Hlope argued that he had received permission for his extra-judicial work from then Minister of Justice Dullah Omar, and therefore escaped sanction. Following the example set by legislation (the Code of Conduct for Assembly and Permanent Council Members of 1997) for the declaration of politicians’ financial interests, the Register may serve as an effective deterrent for potential conflicts of interests which may lead to corruption that undermines, and creates the perception of mistrust in the judiciary. Having to declare one’s financial interests puts a spotlight on additional income, which may derive from extra- judicial work.

With this in mind, a process was started in 2000 in which “Guidelines for judges of South Africa” were developed. However, a deficiency in this attempt was that it was not legally binding and did not include sanctions. The Judicial Service Commission Amendment Act was passed on 27 October 2008 and gives effect to section 180 of the Constitution which provides for national legislation that addresses serious yet unimpeachable complaints against judges. According to the Government Gazette, the Act aims to provide clearly defined procedures to deal with complaints against judges, to establish the Judicial Conduct Committee (a formal mechanism for dealing with such complaints); provides for a Code of Conduct which “serves as the prevailing standard of judicial conduct which judges must adhere to”; to establish and maintain a Register of judges’ financial interests, as well as the establishment of Judicial Conduct Tribunals. Between 2008 and 2010, subordinate legislation (the Code and Register) were drafted by the Chief Justice in consultation with the Minister of Justice with the intention of creating a framework for judicial accountability. In October 2010 the Ad hoc Joint Committee on Code of Judicial Conduct and the Regulations on Judges’ Disclosure of Registrable Interests was established, and held public hearings on the 19th of January 2011.

The timelines from hereon are unclear. The draft Register will still have to be presented, but no dates have been put forward. After taking into consideration the public’s submissions, the Committee will have to go through both the Code and Register on a clause by clause basis, after which it will be submitted to Parliament and then to the President to sign into law. This process must now be expedited. While the milestone of the Amendment Act of 2008 received a great deal of attention, over two years have since passed, and the provisions of the Act have still not been implemented.

While it is acknowledged that there is a delicate balance between judicial independence and accountability, it is possible that the two can be mutually reinforcing, and result in the greater good. How the people of South Africa view the judiciary, whether they trust judges’ rulings and believe that the judiciary serves as a reliable and easily accessible instrument for their protection against the government and the private sector is critical. Both government and the judiciary need to take cognisance that while there may be a lot at stake by the proposed Code and Register, there is much more to gain in terms of advancing transformation and the consolidation of democracy. Ultimately, power can only be legitimized if combined with accountability. It is time this theory was put into practice.

Shireen Mukadam, Researcher, Institute for Security Studies, Corruption & Governance, Cape Town, South Africa - 16 February 2011 - www.issafrica.org

Biographical Note: Shireen Mukadam joined the ISS in November 2010 as a Researcher in the Corruption and Governance Programme. Previously, she worked at the Geneva Centre for the Democratic Control of Armed Forces (DCAF) as a Research Assistant and interned at Amnesty International's United Nations Office. Shireen holds a Masters in International Affairs from the Graduate Institute of International and Development Studies (Geneva, Switzerland). Other qualifications include a BA (Hons.) in International Relations from the University of the Witwatersrand, and a B.Soc.Sc in Politics, Philosophy and Economics (PPE) from the University of Cape Town. Her interests include the security- development nexus, with a focus on post- conflict peacebuilding.