South Africa

JUDGING THE JUDGES

Populists propel political attacks on the judiciary, says human rights activist Elinor Sisulu

Elinor Sisulu at the Albertina Sisulu memorial lecture at St George’s Cathedral in Cape Town on 29 August 2018. (Photo: Gallo Images / Daily Sun / Lindile Mbontsi)

‘The labelling of judges as quislings is horribly reminiscent of similar attacks on judges, journalists and activists in many countries on this continent. It is a familiar narrative that presages a more authoritarian politics,’ said Sisulu.

The most vulnerable and marginalised people suffer when politicians attack the judiciary, says human rights activist and author Elinor Sisulu. 

“A major problem on this continent is leaders who do not abide by their own constitutions, who see themselves as above the rule of law and do whatever they want,” said Sisulu in response to questions from Daily Maverick

Sisulu spoke out in her capacity as a human rights veteran and not as a member of the Sisulu family, which she said was a melting pot of different political views. 

Tourism Minister Lindiwe Sisulu has provoked outrage and debate with an intemperate attack on the judiciary in general and on black judges in particular. 

President Cyril Ramaphosa defended the judiciary in his weekly letter, but did not respond directly to his minister. The Sunday Times reported that he is unlikely to fire Sisulu despite growing calls for him to do so. 

“My observation as a human rights activist is that when politicians attack the judiciary, it never augurs well for the citizenry, especially the most vulnerable and marginalised,” said Sisulu, who cited examples like the Irene Grootboom judgment by the Constitutional Court which advanced the socioeconomic rights of the poorest South Africans. 

“Political attacks on the judiciary are often propelled by populist impulses and I cannot think of one example when they were done in good faith,” she said. 

The 2021 Afrobarometer Survey found that trust in the judiciary had declined among South Africans, but that it still enjoyed more trust than the president (as an institution) and Parliament.

Lindiwe Sisulu’s opinion article contained special criticism of black judges for advancing for what she described as a neo-colonial order in South Africa and the protection of an apartheid status quo rather than for an archive of findings that supported transformation. Her views came in for a drubbing by acting Chief Justice Raymond Zondo, former Constitutional Court judges, legal scholars and practitioners as well as a full row of leading intellectuals. 

“The labelling of judges as quislings is horribly reminiscent of similar attacks on judges, journalists and activists in many countries on this continent. It is a familiar narrative that presages a more authoritarian politics. It is deeply concerning if this is going to be a trend in South Africa,” said Elinor Sisulu. 

In 2021, Zimbabwe’s minister of justice, Ziyambi Ziyambi, was criticised for saying that the judiciary should have its eyes poked out. Sisulu’s opinion article and two more she has written are strident, but do not employ language as violent as Ziyambi’s.

Judges have recently come under pressure in Malawi, Kenya and other countries in Africa. 

“This is not to say that the judiciary is beyond criticism, or even the Constitution for that matter. But they should never be used as a scapegoat for the failure of leaders to confront the greatest challenges of our time,” said Elinor Sisulu. DM

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All Comments 18

  • It’s a pity that this article doesn’t hit the headlines in the same way as the inflammatory populist nonsense of Lindiwe Sisulu does.

    • You’re right. Unfortunately voices of reason are drowned out by the cacophony of the vitriolic garbage spewed out by the likes of Lindiwe Sisulu.

  • Thank you very much for publishing this article that provides a very thoughtful and well-reasoned antidote to the populist rhetoric that is used to grab headlines and fuel political ambitions! Thank you also, Ms Elinor Sisulu, for all of your dedicated work promoting human rights.

  • The offspring of really ‘great’ leaders have always faced the challenge of ‘living up’ to the name/reputation of their illustrious parent/s. This is an impossible but manageable one if approached sensibly. However, in this instance we have the tragedy of the literal assassination of the reputation by one of the offspring.

  • This honourable lady has very succinctly described the problem of African politics when she said: “A major problem on this continent is leaders who do not abide by their own constitutions, who see themselves as above the rule of law and do whatever they want.” Now the problem is how to work with that to benefit the citizens of the continent.

  • Thank you for this article Ferial, especially in taking the initiative to contact Elinor Sisulu. I find it most interesting that she and Lindiwi Sisulu are from the same family, but with massive opposing opinions. What however is a concern to me, is the declining trust in the judiciary as highlighted by the Afrobarometer survey. A trust percentage (lot and somewhat) of below 50% is shocking. The “not at all”, percentage of 28% even more so. Can it then also mean that the continuous critic by Jacob Zuma and some other ANC cronies, as well as the EFF, is starting to have a major impact in citizen perceptions? If so, it certainly is going to be a major problem if and when any state capture cases go to court.

    • One might be disappointed in the judiciary for differing reasons. Eg I’m sad none of the state capturers has gone to jail. A Zuma supporter might feel he’d been sent to jail for political motives on a minor charge, others will criticise the legal system for being too slow to deal with nimble crooks or that the law is too lenient giving bail to a dangerous felon.. Whatever.. Lumping us all together doesn’t say we all want to abandon ourselves to a lawless jungle.

    • Coen, we should maybe not read that all the way you do. It could as well mean that people don’t trust that justice is done (most people never appear in the dock). Not all meant what LS meant?

      • You might well be right Johan. The Afrobarometer survey results could be open to interpretation. The dramatic decrease in trust of the judiciary since 2006 is however very dramatic. The only way to know then is for Afrobarometer to add a qualifying question: Why do you say that?

    • Reminds me of that “drunk uncle” story a few years ago 🙂

      One suspects this Easter the Sisulu family gathering might be a bit strained. The XMas family gathering after the ANC congress could be downright uncivil.

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