THOUGH beset by serious problems of his own, South Africa’s Chief Justice Mogoeng Mogoeng has a lot of advice for judges in the rest of Africa.
Speaking at Chatham House in London last month, the Chief Justice’s given topic was ‘The Rule of Law in South Africa: Measuring Performances and Meeting Standards’. However, after just a few remarks he said that since other African countries faced similar challenges, ‘albeit to varying degrees’ he had decided not to confine his address to South Africa, but instead would deal with the ‘broader African situation.’
This was a ‘beautiful continent’, he said, with many people and large tracts of land. Africa, extremely rich in minerals and natural resources, had ‘what it takes’ to ‘bask in the glory of sustainable economic development and prosperity’ and for its people to enjoy ‘stability in an environment of good governance, facilitated by an independent, efficient and effective court system.’ Yet reports about Africa were ‘generally negative’.
The continent was usually associated with ‘massive corruption, social and political instability, rigged elections, dictatorships, abuse of human rights with near impunity, rampant non-observance of the rule of law, coups d’etat, sickness and disease, high mortality rate, abject poverty, economic under development, dependency and in general, (a) paucity of accountability, responsiveness and good governance.’
He suggested it was best not to dwell on the ‘predictable lamentations of Africa’, based on ‘what colonization has done to us’ and the misuse of the continent by certain superpowers. Instead those factors should be identified that ‘strangle’ the possibility of ‘African people enjoying the peace and prosperity that this great continent is pregnant with, which African people can change.’
This is where the judiciary came in: ‘To breathe life into the African dream inspired by the desire to break free from centuries of economic oppression, and to recapture the lost glory of Africa, the judiciary in Africa must be more alive to the enormous responsibilities it bears on its shoulders to contribute to the renaissance of Africa.’
It is astonishing to read all that the Chief Justice believes can be achieved by the judiciary:
Peace, good governance and sustainable economic development could be attained when the judiciary enjoyed individual and institutional independence and was faithful to its constitutional mandate.
Each African country ‘desperately needed’ a truly independent and efficient judiciary to create peace and stability. Crime and corruption would be reduced if people knew that ‘arrest, prosecution, conviction and sentence for the guilty’ was predictable.
Anyone plotting to grab power from government would be deterred by knowing ‘what an independent judiciary in their country could do to them’.
When the other branches of government knew that courts would act as the guardians of the constitution and do their job without fear or favour, they would observe and promote the rule of law.
Government and business officials would obey the law and observe business ethics once everyone knew that the courts would act fearlessly against anyone ‘from the President to a mayor’.
And when potential investors understood that in Africa ‘you will get justice against any law-breaker when defrauded’, then ‘they will come in droves to invest, given the huge and diligent labour force, the fertile and productive land, the very rich minerals and abundant natural resources we have to offer.’
He said a ‘legitimate’ way should be found to ensure judicial independence throughout Africa. Academics as well as the organised profession and bodies like the International Commission of Jurists should speak out, along with judges themselves who should ‘work on our own vocal chords’.
‘In countries like Singapore and the UK’ there was peace, good governance and a generally sound economy because ‘courts force the politicians and society to act only in terms of the law.’
He said he was convinced that if Africa’s judges carried out their constitutional responsibility ‘as courts in African countries, then Africa’s lost glory shall be recaptured, and we shall assume our rightful place in the community of nations. We shall shed ourselves and our continent of the stigma, the disrespect, marginalization and suffering that we have had to endure for far too long.’
‘Please don’t misunderstand me,’ he then added. ‘I am not saying that the judiciary alone can turn things around in a country. But I am saying that the judiciary left to do its job has the capacity to significantly change the deplorable conditions that the majority of our people have had to live with over the years.’