Johannesburg- Not many people will have their names become a verb. This is the rare immortality of Robert Bork – the late US jurist.
“To bork” was added in the Oxford English Dictionary in the early 2000s with the definition: “To defame or vilify [a person] systematically, especially in the mass media, usually with the aim of preventing his or her appointment to public office.”
You may be asking yourself what this journalist is on about? It was in the fall of 1987 – Ronald Reagan had tapped conservative darling Robert Bork as his nominee for the coveted position of associate justice of the Supreme Court of the United States – the equivalent of our Constitutional Court.
The public interview of Bork was a merciless attack on his character by the Democrats, whom many in the Republican party felt was grandstanding. Bork was eventually rejected by the senate – the body that has the final say on judicial appointments in the US.
To the reader who places premium value on accuracy by the media – no, I was not in Bork’s confirmation hearings – I was not even born at the time. But through literature, history and archived footage, one gets to learn from history that shapes much of the present.
The recently concluded interviews of four well-qualified candidates – Mandisa Maya, Dunstan Mlambo, Raymond Zondo, and Mbuyiseli Madlanga for the vacant position of chief justice of South Africa’s apex court has polarised the nation.
Some are seething with anger that their preferred candidates were “borked” out of the race, and the process tainted with manufactured anger displayed by some commissioners when probing candidates they dislike – for whatever reason. Maya, who has been put forward by the Judicial Service Commission (JSC) as its preferred candidate for an appointment for the top job is no palooka.
She already heads the influential Supreme Court of Appeal. If confirmed by President Cyril Ramaphosa, she would make a stellar chief justice, no question about that, unless you have just made your way from a bar. The independence of the judiciary would not be under threat under Maya’s leadership or any of the candidates shortlisted for the coveted job.
What should worry South Africans is the degeneration or borkanisation of the JSC processes where increasingly insults and character assassination are disguised as robust interrogation of the candidates’ knowledge of the law. It should not be the norm that people of good integrity who raise their hand for public office can be lynched in public and their dignity and good names torn into shreds.
This is a fate no South African should be subjected to. We have allowed a nauseating practise where serial litigants are given an opportunity to subtly relitigate their cases and scold judges who previously ruled against them.
The decision in the early 2000s to have Interviews not interrogations Kabelo Khumalo Conscience of Centrist public interviews of candidates for judicial selection was an inspired one.
However, we should go a step further and televise the deliberations by the JSC commissioners that currently take place behind closed doors to gain insight into what they consider before recommending the candidates.
If the interviews can be held publicly, why is the JSC’s deliberation held behind closed doors? How does the public have confidence that the public lynching of some candidates was not repeated behind closed doors? Full transparency of the JSC processes is no longer an option; it’s a must. Many legal scholars believe the Bork 1987 confirmation hearings provided a prototype on how to “take out” a candidate for judicial appointment (particularly in the US). My fear is different.
South Africa’s judicial appointments should not mirror that of US Justice Clarence Thomas and his peer Bret Kavanaugh. Both men were accused of sexual harassment after being nominated for the Yankee’s apex court.
Their public humiliation is better captured by Kavanaugh when he said back in 2017, at his confirmation hearings: “Such grotesque and obvious character assassination – if allowed to succeed – will dissuade competent and good people of all political persuasions from serving our country.” We can do better as a nation and we must.
Interviews for the post of chief justice of the Constitutional Court must not degenerate into character assassination of candidates. Julius Malema was seen as brutal during his questioning of Judge Dunstan Mlambo.
Immigration crisis a ticking time bomb In his closing remarks during his State of the Nation Address on Thursday, President Cyril Ramaphosa aptly told the nation how we South Africans have previously been confronted with difficult choices, and how we have made those choices as a nation.
Among other things, he spoke about the need to forge a new consensus to confront new realities and to rally together to fight corruption, create jobs and achieve a more just and equal society.
One of the realities this country faces is the immigration crisis. Rather than shooting straight to the point about the ever-rising crisis, the president was academic in his address, especially against the background of rumours that have been swirling that he will introduce job reservation.
The president chose to rather speak about the revised critical skills list that has been published following what he said were detailed technical work and extensive consultations with business and labour. He did not speak directly about the immigration crisis facing us. The updated list, according to Ramaphosa, reflects the skills that are in shortage today to ensure that our immigration policy matches the demands of our economy.
He, however, again decided to skirt around the topic, avoiding naming those skills. All the president could tell the nation was that a comprehensive review of the work visa system to explore the possibility of new visa categories was currently underway.
We have previously warned the president to stop the habit of shying away from tackling burning issues head-on. It is a problem that must be discouraged from a head of state. We have no doubt that Ramaphosa is a good man who wants to achieve the best for this country.
He has demonstrated a firm commitment to tackle the scourge of corruption, build a capable state and turn around the faltering economic fortunes of this country, among other things.
However, we are afraid that his inability and reluctance to address the immigration crisis will see it to explode. This country is sitting on an immigration time bomb. Ramaphosa and his government are fiddling while Rome burns, allowing political opportunists to hijack the issue and fan the flames of violence against foreign nationals.
Already there is a campaign – dubbed “Operation Dudula” – that is taking root across some communities, with angry citizens being rallied to raid businesses owned by foreign traders and buildings claimed to have been hijacked by foreign nationals. The government seems to be at sixes and sevens about the question of immigration. It is time for a national summit on foreign immigration to be convened.
Such a summit must include all political parties, civil society formations, church groups and bodies representing foreign nationals to reach an accord on this issue.
The government is not going to find a solution to this highly polarising issue without the involvement of all social partners. Difficult decisions, choices and consensus will have to be made before the situation spirals out of control. Time is running out.
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