The proper place of magistrates within a constitutional state came under the spotlight again at the closing ceremonies of the International Association of Judges’ African region conference, held in Cape Town. It had been a recurring theme throughout the conference, with delegates from a number of countries complaining that magistrates were often treated as civil servants, and their judicial independence ignored or undermined by government.
In the view of conference host organisation, the Judicial Officers Association of South Africa (Joasa), under the South African constitution, magistrates are not civil servants but members of the judicial arm of government, and Joasa president, Cape Town’s chief magistrate Daniel Thulare, spoke with some passion on this issue at the final event, a mayoral dinner in the civic centre. Broadening the reach of the concept of a single judiciary, Thulare said that everyone who held judicial office “in every part of Africa, in every layer of our court and court administration systems”, had a special mandate. This was to establish the “judicial authority” of each country, “(asserting) the judiciary as an arm of the state.”
“We are not a government department and we have a generational duty to reject (being) treated like one. We are part of the triad of the state, made up of the executive, the legislature and the judiciary,” he said.
It was against this background that “we have to unlearn … the structural flaw of having courts and judicial officers, magistrates, as not members of the judiciaries in our countries.”
“We have to learn and appreciate Africa’s innovative voice that these are judicial officers and belong in the (judicial arm of state) and nowhere else in the machinery of the states of Africa.”
During the conference “Africa told us” that judicial officers were not an “elitist club of fat cats”, he said. “The judiciary in Africa is not cold, aloof and unjustifiably removed from the poverty, inequality and a backlog of resources and services for the majority”.
“The struggles for redress and relief from poverty (and) inequality … are not that of the executive and the legislature alone.”
When Joasa and its equivalent bodies elsewhere in Africa argued for a proper budget for infrastructure and for resources, it was not simply for “personal convenience”. It was to ensure that when anyone, in any of the countries of Africa, approached a courthouse for services, the state, through its judicial arm, could respond appropriately. “It is to help us uphold the rule of law.” Similarly, “we do not assert our independence for our own sake. It is necessary for the rule of law.”
Thulare, who is a special United Nations rapporteur for Africa on the independence of the judiciary, added that at the September 2019 meeting of the International Association of Judges in Kazakhstan, the issues raised during the conference by delegates from more than 20 African countries, would be reported on. These issues could then be taken further by the IAJ if there was agreement to do so.
The question of the place of the magistracy in the judicial system was raised repeatedly during the conference by delegates from other countries as well, among them Lesotho whose situation was portrayed as particularly dire. The message from many countries was that the legal position was clear, with the magistracy included in the judicial system as judicial officers, but that the government often treated magistrates as though they were “mere” civil servants, thus compromising their independence.