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Restore accountability to the Legislature

- Wits University

Justice Moloto bemoans decade of ‘accountability inertia’ and asks graduates to contribute to people- driven democracy.

Judge Bakone Moloto awarded an Honorary Doctorate of Laws by Wits University in recognition of a career serving South Africa and the global community (pic credit: Patrick Fuller)

Former judge in the International Criminal Tribunal (ICTY*), Justice Bakone Moloto delivered a wide-ranging address at Wits this week, which focused on the broken and permeable pillars of state – the Executive; the Legislature; the inadequate electoral system; and the mission of the current generation. 

Starting with what he termed “the decade of accountability inertia”, Moloto said that accountability in the pillars of the state is crucial to democracy. However, in the last decade the Legislature has been swamped with representatives who have failed to fulfill their responsibilities.

They are “more beholden to their political parties than to the voters to whom they are constitutionally accountable” and as a result they have become “toothless at holding the Executive to account.”

“There can be no accountability for civic service if decisions in Parliament are made on a political basis – by career politicians. Career interest will, then, always trump country interest, or citizens’ interest, as this decade of inertia demonstrated so clearly”, said Moloto.

He was speaking to an audience of graduates and parents at Wits on Wednesday, where he was also awarded an Honorary Doctorate of Laws by the University.

The esteemed judge bemoaned the ‘accountability inertia’ that had seeped into “The House of the People”.

He further added his voice to growing concerns around the ineffective electoral system used in the country, which has produced ‘party puppets’.

“One thing that has been proven without question by our recent history is that the status quo is not serving the majority of the population. Our proportional representation system does not allow the views of the people full representation within the Legislature”.

He stressed that “parliamentary representation is a matter of civic, not political, duty.”

Debates around electoral reform continue to rage and Moloto suggested that South Africa could use the constituency-based electoral system, similar to that used in the UK.

“This is a system in which candidates from various parties vie for election in a particular constituency, with the candidate [who wins] the majority of the votes representing that constituency in the Legislature.”

Delivering on the promises to the constituency thus becomes a priority as representatives face a real possibility of not returning to Parliament in the next election if they fail to deliver.

Moloto called on the graduates to do what is right for our collective futures.

“As your minds are unleashed onto the world, think about what contribution you might make to the legal dynamism necessary to ensure that the South Africa of the next 100 years is truly shaped by a people-driven democracy that we, and those who come after us, can be proud of."

Read the speech by Judge Bakone Moloto.

About Moloto

Bakone Justice Moloto had a distinguished career as judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY). He is the only South African to sit as a judge on the ICTY, generally recognised as the most successful international criminal tribunal of recent years. His career at the ICTY extended from 2005 to 2017 and culminated in his sitting as one of three judges  in the trial of the “Butcher of Bosnia”, Ratko Mladic.

Born in 1944, Moloto first studied at the University Colleges of the North and Fort Hare. He was a prominent student leader at the University College of Fort Hare and was involved in a skirmish with the police at a student protest to commemorate the death of Prime Minister Verwoerd in 1966. This led to his exclusion from Fort Hare for a year, during which he taught at Orlando West High School and Tshidi Barolong High School. Readmitted to Fort Hare in 1968, he became active in the University Christian Movement (UCM), which called a strike to protest the University’s refusal to allow the UCM to operate on campus. This resulted in all students being suspended and required to reapply for re- admission. Moloto was not readmitted in 1969. In 1971, he was banned under the Suppression of Communism Act and banished to Mahikeng.

In Mahikeng he became a candidate attorney for Frank Sithole and completed his BA (1973) and BProc (1978) degrees at the University of South Africa. In 1978, he qualified as an attorney and set up his own firm. Later from 1986-1987 he became a managing partner in the attorney’s firm of Baqwa, Moloto, Nzimande, Webster and Mbuli in Durban.

In 1977 the Black Lawyers’ Association was formed to represent the interests of black professional lawyers and shortly afterwards the Black Lawyers Association Legal Education Centre was established to find positions for young black lawyers in law firms and to engage in trial advocacy training. In 1987, Moloto succeeded Godfrey Pitje, the doyen of South African black lawyers, as director of this program. According to Justice Dikgang Moseneke, former Deputy Chief Justice of South Africa and former Chancellor of Wits, the trial advocacy program under Moloto “flourished as it attracted scores of practicing advocates and attorneys, so much so that the program had to be extended beyond Johannesburg to far- flung cities like Cape Town, Durban, and Port Elizabeth as demand grew.”1

In 1995 Moloto was appointed as a judge of the Land Claims Court that dealt with claims by people who had been dispossessed of their land during the apartheid era. In 2003, he was also appointed as a judge of the North Gauteng High Court, in effect serving as judge before two courts.

In 2005, Moloto was nominated by the South African government to serve on the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY). It was established by resolution of the Security Council in 1993 to prosecute persons responsible for committing serious violations of international humanitarian law that is genocide crimes against humanity and war crimes, in the former Yugoslavia after 1991. Judges were required to be properly qualified judges of high moral character, impartiality and integrity, and were elected by the General Assembly of the United Nations from a list submitted by the Security Council. In 2005, Moloto was duly elected as a judge of this court by the General Assembly.

This was the criminal tribunal on which Moloto served for twelve years. During this period, he sat as a judge in a number of the most historic international criminal trials of the present era. His final trial was that of the commander of the Bosnian Serb army General, Ratko Mladic, widely known as the “Butcher of Bosnia”, who was found responsible inter alia for the siege of Sarajevo and the massacre of some 8,000 Muslim Bosnians at Srebrenica in 1995. The Court sat from 2011 to 2017 in this case and in November 2017 convicted Mladic of genocide, crimes against humanity and other international crimes. Mladic was sentenced to life imprisonment. The appeal against this verdict is still pending.

Moloto was highly regarded as a judge by his judicial colleagues and counsel. He was an independent thinker and did not hesitate to dissent from the majority of the Court when he found this necessary. His dissenting opinions were of significance to the jurisprudence of the ICTY. His time at the ICTY was characterised by loyalty and collegiality to the institution that he served.

Judge Theodor Meron, a former President of the ICTY, summed up the esteem in which he was held by judges of the Court when he stated: “Judge Moloto’s service at the ICTY was characterised by independence, impartiality, fairness, professionalism and depth. When the law and evidence so required, he did not hesitate to reach unpopular decisions. Never guided by preconceived narratives of guilt or innocence, law fairly applied was his one and only lodestar. Once he had reached a decision, he adhered to his position disregarding any political agenda. In short, Moloto was a model to his colleagues  in the international judiciary.

ICTY* International Criminal Tribunal for the Former Yugoslavia