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“The judiciary is the temple of justice, and in most cases, it is the last hope of the common man.” Prof John-Mark Iyi, director of the African Centre for Transnational Criminal Justice (ACTCJ) at the University of the Western Cape, used these words to introduce a recent webinar discussing the complex task of combating corruption in the judiciary and upholding judicial independence in sub-Saharan Africa.
The discussion was moderated by Dr Ntando Sindane, a specialist in public international law from the University of the Western Cape. Panellists included Dan Mafora, senior legal researcher for the Council for the Advancement of the South African Constitution, and Karam Singh, executive director of Corruption Watch.
“In sub-Saharan Africa, we’ve been grappling with this problem for a very long time,” said Iyi. “But how do you maintain the sanctity of judicial independence, while at the same time ensuring judicial integrity and incorruptibility?”
“Like any branch of government, the judiciary is not immune from corruption,” said the ACTCJ. “The existence of corruption in the judicial system even in minuscule degree undermines the credibility of the judiciary, weakens the administration of justice, and undermines democratic principles and protection of human rights.”
The highest level of vigilance, therefore, is required from the judiciary and all stakeholders to maintain the independence of the judiciary and ensure that members do not engage in corrupt activities.
Antennae up
“We have to have our antennae up on the issue of judicial corruption, because as with corruption generally, it happens in a way which is very difficult to detect in a context where allegations don’t come to the fore without people blowing the whistle,” said Singh.
He disagreed that there was any significant tension in South Africa between the two imperatives of combating judicial corruption, on the one hand, and respecting the independence of the judiciary on the other – “either in theory or in practice”. The reason for this, he clarified, was simply because current efforts to combat judicial corruption or misconduct in the country are not particularly effective, nor are they very evident or impactful, and as a result they don’t infringe upon the independence of the judiciary.
However, there are factors affecting the impact of the courts, Singh said, such as ongoing and long-standing case backlogs, financial limitations such as a reliance on government for budget, and an enforcement regime which is not robust enough when it comes to combating judicial misconduct.
“If we’re going to take issues of judicial misconduct seriously, we need to think about how we can put a better system in place, a system which complements a more enhanced and robust approach across the board to dealing with issues of corruption, maladministration, and fraud.”
The rule of law applies to everybody, he said.
Singh also touched on the current contentious matter of former judge John Hlophe, now the MK Party leader in Parliament, and the questions that have arisen around an impeached judge sitting on the very Judicial Service Committee that is responsible, among others, for sifting through the lists of potential judges and magistrates and ensuring that candidates of the correct calibre are recommended for appointment to the bench.
If the courts cannot function efficiently and effectively, he said, then their independence cannot be substantively realised. Judicial independence will be bolstered by addressing the structural challenges, including the resources and capacity constraints that limit the effective and efficient operation of the courts.
Safeguards
Mafora, in his turn, highlighted two other measures that function both as judicial independence safeguards and anti-corruption measures. The first is the processes for the appointment and removal of judges, both of which aim to prevent political interference with the independence of judges.
“Judges are protected by security of tenure. They cannot be fired for the decisions that they make, and that is a very important safeguard to allow them to do their job without fear, favour, or prejudice.”
The second is section 176.3 of the Constitution, which holds that “The salaries, allowances, and benefits of judges may not be reduced”. This guarantee of remuneration is the reason that judges in South Africa have historically been quite well paid in relation to judges in other countries, said Mafora.
However, he added, “Research … showed that in 2021 judges earned 15% less, in real terms, than they did in 2009. That presents an opening for wealthy individuals, wealthy corporations, to exploit the fact that judges are not earning as much as they used to, to curry favour with judges and establish corrupt relations.”
Mafora stressed the importance of ensuring that judges are well remunerated to reduce or remove the danger of enticement of more money, more benefits, and more prestige, from outside sources.
“If you don’t pay judges well enough, there’s always someone with money willing to pay for the decision that benefits them.”
Mafora emphasised that corruption in the judicial system is not limited to judges only.
Way forward
The two speakers highlighted several points that, if acted on, will help to address the existing challenges of combating judicial corruption in South Africa.
They spoke of:
- The lack of a dedicated institution or unit within the National Prosecuting Authority or the Hawks to investigate potential corruption within the judicial system.
- Inadequate resources, skills, and expertise of the Judicial Conduct Committee and tribunals. If improved, these would more effectively address ethical problems and misconduct.
- A need for a review of the sanctions and consequences for judicial misconduct to ensure they are proportionate and do not undermine public confidence in the judiciary.
- A need to financially insulate and adequately compensate judges to reduce their susceptibility to private/outside influence or enticement.
- A need for the development of a clear and transparent process for addressing allegations of undue influence or interference in the judicial system, including from private sector actors.
