Yet another war of words is being waged in South Africa, ostensibly over the role of the courts in delivering the change envisaged in the constitution. As usual, given that most attacks on court judgements have come from leading members of the governing African National Congress (ANC), the opening salvos were fired by a member of the cabinet – tourism minister Lindiwe Sisulu, in a recent opinion piece in the media.
In the piece, she clearly seeks to evade her (the ANC’s) direct responsibility for their failure over the past 27 years effectively to implement policies and programmes that would have delivered socio-economic rights and services to alleviate poverty and inequality.
Aside from calling some black judges “mentally colonised” and “house negroes”, Sisulu threw in rhetoric about imperial impositions and the negation of African values. She singled out the rule of law for particular disdain.
This seems odd because politicians mostly claim adherence to the rule of law even if not honouring it in practice. So rejecting it seems to break with one of the essential foundations of any constitutional democracy.
Let us look more closely at the meaning of the rule of law, and why it has come to be the favoured foundation for constitutional democratic governance throughout the world over the past century.
The rule of law
The modern origins of the rule of law are usually traced to the work of the English constitutional lawyer A.V. Dicey. In his Introduction to the Study of the Law of the Constitution (1885), he defined the rule of law as follows:
The absolute supremacy … of regular law as opposed to the influence of arbitrary power … It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens
Dicey added a third leg to this definition, noting that in England the rule of law was established through popular struggles of ordinary people. This resonates with South Africans’ experience in resisting apartheid.
After the second world war, the rule of law became the rallying cry for all sorts of political and social movements.
The great Marxist social historian E.P. Thompson said (in 1975) the fact that the ruling class was forced to rule by law, and not by abuse of power, was a cultural achievement of universal significance. Thompson was sceptical about law, but reached this conclusion studying the popular resistance waged in the late 1700s by ordinary people in England against unjust rules irregularly enforced.
The appeal of the rule of law was also enhanced when it was extended to include socio-economic rights. This was triggered by the rapid pace of decolonisation during the 1960s, and pressure from newly independent Asian and African democracies.
The rule of law thus came to embody the rallying cry for the fair and democratic exercise of public power, buttressed by law and fundamental rights. One of South Africa’s leading academic lawyers, Tony Mathews, refined Dicey’s definition (1975) by laying down preconditions for what would qualify as “law” and by insisting on the equal guarantee of all basic rights and freedoms.
Rule of law and accountability
So the rule of law today has developed greatly since it was first formulated. It has responded to the struggles of those resisting imperialism and autocratic rule throughout the world.
It now demands not only rule by law and the protection of basic rights. It also demands that those who exercise public power account for their decisions and actions. They must justify any departures from constitutional and lawful mandates before an independent and impartial court of law.
The erstwhile apartheid regime argued that it complied with the rule of law. But it plainly did not: although it mostly ruled by law, the rules it adopted did not comply with the generally understood concept of the rule of law.
In particular, most of its laws were premised on “race” inequality and the denial of basic rights and freedoms to all. Against this background, the demands by anti-apartheid campaigners inside South Africa over many decades to entrench the rule of law are hardly surprising.
The ANC committed to government authority limited by law in its 1955 Freedom Charter and 1988 Constitutional Guidelines. Thus there was strong support during the constitutional negotiations of the early 1990s for the rule of law as a founding value of the post-apartheid democratic regime.
So the 1996 constitution provides in section 1 that
South Africa is one, sovereign, democratic state founded on the following values: … (c) Supremacy of the constitution and the rule of law.
It is widely referred to by all judicial officers, particularly in holding the executive and public administration to account for their exercise of public power.
The rule of law thus provides a universal benchmark for assessing the accountability of government for the lawful, effective, efficient and uncorrupt provision of goods and services. It is precisely the corrupt abuse of power that has become so widespread in public governance since about 2010 (under former president Jacob Zuma) that threatens the survival of the rule of law. Had it not been for the many court judgments upholding the rule of law, the country would be in a far worse position now.
Minister Sisulu’s claims in context
So what accounts for this most recent and shockingly intemperate assault on the judiciary?
Minister Sisulu appeared to be attacking the courts for their critical role in upholding the rule of law.
She vilified (black) judges for requiring compliance with the constitution and parliamentary laws, and for demanding accountability for the exercise of public power. But she proposed no solutions for the problem she manufactured.
Her remarks coincided with the release of the first of Justice Raymond Zondo’s reports on state capture. The report contains harsh criticism of the corruption and abuse of power by the ANC and its leaders.
The governing party’s reputation is in tatters and public pressure for accountability mounts. Must one thus conclude that it is Justice Raymond Zondo and the state capture commission, together with that faction of the ANC which is regarded as being in favour of the foundational values of South Africa’s constitutional democracy, that are the real targets of Sisulu’s vitriol?
It is often argued that a constitutional regime is only as good as the protections it provides for those who oppose government, even from within. The rule of law is the key element in any such dispensation. Those who would destroy the rule of law and its enforcer, the judiciary, should ask themselves: to whom will I turn for protection if I find myself on the wrong side of political power?
Hugh Corder, Professor Emeritus of Public Law, University of Cape Town