BARNEY MTHOMBOTHI | When judicial criticism cuts both ways

New US ambassador to South Africa Brent Bozell had hardly warmed his seat when he touched a hornet’s nest by seeming to cast aspersions on the country’s judiciary. Probably feeling at home with a conservative audience, the envoy was asked for his reaction to the court judgment that the chant “Kill the Boer” formed part of normal political discourse and could therefore not be regarded as hate speech.

Without missing a heartbeat, our esteemed guest went in head first: “I don’t care what your courts say, it’s hate speech,” he said vehemently. And he had not even submitted his letters of credence to President Cyril Ramaphosa, which meant he hadn’t officially assumed his duties and therefore couldn’t opine on matters affecting relations between the two countries.

He later backtracked somewhat on impugning the integrity of the judicial system, but not before his words had unleashed a storm in a teacup. South Africans, utterly disheartened by the political wreckage around them, still retain a smidgen of respect for the judiciary, even as it occasionally seems intent on self-immolation.

But any reasonable person would agree that the song amounts to hate speech. I’m not sure what the equality court judges were smoking when they decided four years ago that Kill the Boer was an innocent historical struggle song rather than an incitement to violence — a decision reinforced by the constitutional court’s refusal last year to hear an appeal on the grounds thast it stood no prospect of success.

But how can it be morally right or acceptable for anybody to go around calling for the killing of other people? Especially in a country with a past such as ours, and where violent crime is an everyday reality? It’s plainly wrong. Its time has passed. Now is the time to build, not destroy. Violent language should have no place in any self-respecting society. No wonder the song, with Julius Malema in full voice, played a starring role during that ambush in the White House. Don’t blame Trump. We handed him the scissors.

[US ambassador Brent] Bozell’s implied criticism of our courts not only carries a putrid whiff of superiority, it also invites comparisons with the US judicial system

But Bozell’s implied criticism of our courts not only carries a putrid whiff of superiority, it also invites comparisons with the US judicial system. The US has a proud history of jurisprudence and over the years has produced legal titans such as Louis Brandeis, Earl Warren, Thurgood Marshall, Oliver Wendell Holmes Jr, Learned Hand and many others who’ve informed and enriched not only American but international law.

And, of course, the US, given that wealth of legal foresight, was the first country in the world to produce a written national constitution. Two of the founding fathers, John Jay and John Marshall, went on to serve as chief justice of the supreme court. Despite such illustrious pedigrees, however, the judiciary — especially the supreme court — has often not so much interpreted the law or the constitution as mirrored the prevailing prejudices of the establishment. It was, for instance, responsible for infamous rulings such as the Dred Scott decision, which held that people of African ancestry could not claim citizenship in the US, thus perpetuating slavery; and Plessy vs Ferguson, which declared that racial segregation laws did not violate the US constitution, thereby giving legitimacy and impetus to Jim Crow laws, especially in the American South.

That decision was overturned more than half a century later in Brown v Board of Education, which asserted that the notion of “separate but equal” facilities was inherently discriminatory and therefore unconstitutional. That marked a period in which the court played a more progressive role, righting societal wrongs in tune with the imperatives of the New Deal era.

But that era now seems gone, and it’s hard to see it returning anytime soon. The supreme court is now in the clutches of right-wing justices who often seem to regard themselves more as political partisans than impartial adjudicators of the law. Their decisions are, without pretence, openly biased. They’re Republican politicians in judicial robes. Neutrality is not a concept with which they appear familiar. Only a week ago, the supreme court, in keeping with the GOP’s campaign to eviscerate civil rights protections, decided to gut what remained of the Voting Rights Act of 1965, the crown jewel of the civil rights movement. The court often seems intent on taking the US back to Jim Crow. The South African judiciary, with all its flaws, has thankfully not yet sunk to such depths. In that regard, the Americans cannot hold a candle to us.

Their system seems to suffer from two fundamental flaws: in selecting judges, presidents often attach greater importance to politics than to legal qualification. A Republican president will select a conservative, a Democrat a liberal. And once on the bench, the judges often deliver the goods and rarely change their spots.

During his first presidential campaign, Donald Trump said abolishing Roe v Wade — the 1973 decision that legalised abortion — would be the litmus test for his supreme court nominees. He had the good fortune to nominate three justices, and they duly delivered. Abortion is now illegal in many US states. And the promised political retribution never materialised. Instead, Republicans continue to control all three arms of government.

The other shortcoming is that judges in the US have no term limit. It’s a lifetime appointment. Some literally die with their gowns on. This has bred not only arrogance but also unethical behaviour among judges who’ve been found to accept free trips and lavish gifts from wealthy donors — even from individuals appearing before the court. Chief justice John Roberts has resisted attempts by congress to impose an ethical code on the justices, arguing that such a move would amount to political interference in the judiciary.

It’s a textbook case of being a law unto themselves.