The US presidential hopeful is a great improvement on the current leadership, but just how progressive he might be remains to be seen
Part one: US politics
Too often too many of our leaders are taking the ”low road”. Not necessarily my view, but that of one of the country’s most senior and respected human rights lawyers, expressed in a private conversation last week. It’s an analysis that leads to the question: What is it that makes leaders take the ”high road”?
The other way of looking at this is that rather than being both shocked and disappointed when leaders take the low road, we should instead lower our expectations in a way that I now realise lay behind my instinctive preference earlier in the year for Senator Clinton over Senator Obama. As the primaries began I was, defiantly, a ”Hillary man”. Defiantly, because every single progressive person who proffered me an opinion on the race for the Democratic nomination was for Barack Obama. I was clearly swimming against the tide — and I couldn’t quite put my finger on why.
My arguments in defence of my position ran from the superficially sophisticated — she was, according to George Stephanopoulous’s account of the first (Bill) Clinton administration (required reading for any serious student of political power), always to the left of any argument that took place in the Oval Office — to the plain crude: ”She is more woman than he is black.”
But I now realise that a creeping sceptism had entered my calculus. Not that I was concerned that a President Obama would be trapped by ”inside the beltway” Washington DC syndrome, because all American presidents are captive to it. But because the exceptions are exceptions to a false, and frankly absurd, rule: we expect too much of political leaders.
This is not, I hope, to descend to Pilgerist cynicism, but rather to inject a dose of reality into our assessment of what leaders can accomplish. They are politicians, and the question is: What is the job description of political leaders and what can we reasonably ask of them? We have a right to expect a high degree of probity in their use of public office. But their role is not to lead us to some nirvana. It is to act as an intermediary whose primary responsibility is to mediate a complex set of competing interests and to navigate a safe course towards maximising the greatest good for the greatest number.
Which takes one back to Hillary Clinton. With her there could be no substantial disappointment, because one’s expectations would be so modest; that she would have provided a seasoned, if gnarled, hand to steer a Democratic White House through the choppy waters of the coming five years.
Yet, in the end, I succumbed, at least partially, to Obamamania. Here, at least, is a man who knows something of the world and who is, therefore, more likely to offer a different world view. Perhaps the only fact of any useful probative value communicated by Cherie Blair’s grubby little memoir of life alongside her prime minister husband was of the occasion when, in conversation with George W Bush, it became apparent to her that the ”leader of the free world” had never heard of the International Criminal Court (ICC). Well, I suppose it confirmed what we already knew, though it is no less shocking for that.
Not only does the first black editor of the Harvard Law Journal know about the ICC — one can be sure of that — but Obama is also capable of locating Kenya on a map of Africa.
How well that will serve him remains to be seen. He is likely to use what Joe Nye calls the ”soft” power of the United States in greater proportion to its ”hard” power. If he restores Samantha Power to his team as foreign policy adviser, a woman whose passion for human rights is as fiery as her reddish hair, then there can be little doubt that an Obama presidency will seek to marshal the US’s soft power to restore what some academics call its ”redemptionist” doctrine. In other words, intervention based not on military might and the protection of US corporate interests, but on humanitarian grounds.
On what basis should we prepare ourselves to judge his performance? Try these two tests for size. One, that he overcomes the short-termist vested interests of US capital to set new standards in relation to carbon emissions, thus driving a new global consensus on climate-change regulation. Two, that he overcomes the venal Zionist/Israeli lobby to push for true justice for the Palestinian people, thus unlocking the possibility of real progress towards Middle East peace and stability.
Progress on either front would indeed represent change we could believe in. The sheer urgency of the former imperative gives him half a chance. But on the second, forget it — regrettably, he’ll be no different.
Part two: Hlophe
Another case of conspicuous consumption?
Hlophe. This is serious. It is not just the divisions in the legal profession. But the enormous test of the judicial-governance system. It is important, as I argued elsewhere with Professor Hugh Corder recently, to play the ball and not the man. This is not about Justice John Hlophe. It is about the ethics of the legal profession, especially the judiciary, and the system of regulation provided for by the Constitution.
In terms of the management of potential conflicts of interest the current system is an exercise in complacency. Whereas members of Parliament must carefully make an annual disclosure to the Registrar of Members’ Interests of any outside financial interests, a judge is permitted to make a ”limited” disclosure to the minister of justice, requesting permission in writing.
An access-to-information request under the Promotion of Access to Information Act (PAIA) recently revealed that between 1994 and 1999 nearly 50 such requests were received and responded to by the then minister of justice, the late Dullah Omar. This information is to be found not in a response from the ministry of justice, which has thus far ignored the request despite the fact that the statutory 30 days has long expired, but from a letter written by current Minister of Justice Bridget Mabandla to Chief Justice Pius Langa shortly before the hearing of the previous complaint against Hlophe, which dealt with his ”secret” Oasis retainer.
What is surprising is that this information was not canvassed in the questioning of Hlophe, who asserted that he had sought and received oral permission from Omar. The questioning of the Judicial Service Commission (JSC) sub-committee hearing the complaint, chaired by Justice Craig Howie of the Supreme Court of Appeal, was pertinent, but hardly exhaustive. This time around it is likely to provide a more exacting test, because the JSC has apparently retained Wim Trengove, one of the country’s most renowned cross-examiners, to conduct the task on their behalf.
For Trengove, who is also representing suspended head of the National Prosecuting Authority Vusi Pikoli before the Ginwala Commission, this is likely to be one of his most important assignments. This is good news. Not because of any desire to ”nail” Hlophe, but because it is of utmost importance that whichever way the hearing leans it must apply a procedure and produce an outcome that can enjoy full legitimacy in both the legal profession and broader society.
The stakes are terribly high. Because all the members of the Constitutional Court signed the complaint, in a sense the credibility of the court as a whole is on the line — and so it is impossible to escape a deep-down anxiety in the pit of one’s stomach about the outcome, whichever way it goes. If the court’s complaint does not prevail the 11 judges will look reckless. If the complaint is upheld, a judicial review of the proceedings by a judge fighting for his political and professional life could end up before the Constitutional Court. What then — are all 11 judges to recuse themselves?
Opposite the JSC will sit Hlophe. Exoneration might clear the way for him to achieve his great ambition, which is to be the next chief justice. Adverse findings against him are likely to result in impeachment or even prosecution. Thus does Hlophe emerge as a mini-Zuma: for ”chief justice” and ”impeachment” substitute ”president of the republic” and ”imprisonment”.
The fact that the stakes are so high is all the more reason for the JSC to ensure that the process followed is as open as it is clear and speedy. Secrecy will only serve to fan the flames of distrust — distrust in the handling of the complaint and in the efficacy and legitimacy of the governance model.
As the JSC prepares for its watershed moment it is to be hoped that the ministry of justice will now publish all records relating to judicial outside-financial interests: the names, dates and the interest requested or declined. Even more than in the case of members of the legislature we need to know — and we have a right to know — the extent to which the judiciary is encumbered by outside financial interests.
Just how many sitting judges collect financial compensation beyond their judicial remuneration or have shares or corporate directorships that could give rise to conflicts of interest? And beyond that, is it even acceptable for them to have secondary earnings – after all, we pay them well, give them a job for a life and a superb pension at the end of it. Or is it the case that they, too, have one by one begun to subjugate their independence to the elite peer-group pressure of the new establishment and its conspicuous consumption?