CARMEL RICKARD: SA’s judiciary on the wrong side of the law

Surveys by Afrobarometer, a research project measuring attitudes on democracy and governance in Africa, often produce surprising results.

Since 1999, Afrobarometer has conducted seven rounds of research, each involving thousands of randomly selected people in more than 30 countries.

Now two academics at the University of Cape Town, Chris Oxtoby and Matthias Krönke, have published a paper examining the outcome of this research in relation to the judiciary in SA.

The most recent survey, conducted between 2016 and 2018, produced some statistics that appear almost incredible. Asked about their "trust in courts of law", respondents from Tanzania expressed most trust (70%), with Nigeria (67%) a close second.

Given the current situation in Zimbabwe and the judiciary’s role there, it is astonishing to read that 63% of the Zimbabweans surveyed expressed trust in the courts, compared with 56% in SA.

Just as extraordinary was to find Malawi (33%) at the bottom. It’s particularly puzzling, in light of the enormous protests held across that country recently in support of the judiciary, and of chief justice Andrew Nyirenda in particular.

This was after Nyirenda had been summarily "put on extended leave" by then president Peter Mutharika, the weekend before a rerun of national elections.

The polls, which returned a new government, were held precisely because the judiciary found the first elections fatally flawed.

In their paper, Oxtoby and Krönke focus on data about the local scene, describing it as alarming "for anyone who cares about the SA judiciary".

A graph, across the same countries, shows whether respondents think judges and magistrates are "involved in corruption". Almost one in three of those surveyed in SA (32%) believed "most or all" local judges or magistrates were corrupt.

Almost one in three of those surveyed in SA believed ‘most or all’ judges or magistrates were corrupt

The authors comment that this "does not bode well for public confidence in the judiciary", and that the level is surprisingly high, given the "few formal complaints of corruption" against SA judges and magistrates.

They speculate that the results might reflect popular dissatisfaction with how allegations of judicial misconduct are managed — via a process that has proved lengthy and indecisive.

If they are correct, then current litigation by legal activist organisation Freedom Under Law (FUL) takes on even more significance.

FUL wants to reopen the case against disgraced judge Nkola Motata, who retired on full pension benefits despite crashing his car while drunk and then throwing racist taunts at the homeowner whose wall he smashed.

FUL believes Motata ought to have been impeached, and the organisation is now challenging the decision to not do so.

State-capture frustrations

Against the concern about corruption in the survey, data also shows SA’s courts have consistently, often dramatically, won more trust and support than other branches of government since 2000.

According to Oxtoby and Krönke, the unexpectedly low levels of public confidence in the SA judiciary might thus be "part of a general loss of confidence in governance institutions and particularly justice sector institutions".

That frustration could have more to do with the failure of the prosecuting authorities to act promptly against those involved in state capture than unhappiness with the judiciary itself, they suggest.

The authors also believe that the way judges conduct themselves on and off the bench plays a significant role in how the judiciary is perceived. And, they say, it is "vitally important" for all members of the judiciary to explain their findings clearly in their judgments, and to find ways to explain the role and mandate of the judiciary.

In their view, sessions on public perception should be incorporated into judicial training. A new alertness to problems, they suggest, would allow the judiciary to intervene in a way that increases public confidence.