The Rule of Law Needs to Serve Both the Hungry and the Overfed

November 15, 2009

Mondli Makhanya - South Africa - For my venial sins I found myself in the city of Vienna over the past few days. Before you giggle cynically, let me hasten to add that it was cold and wet and a lot of hard work was done.

So all sympathies gracefully and gratefully accepted.

The occasion was a conference titled Working Together to Advance the Rule of Law. Organised by an outfit called the World Justice Project, the gathering had drawn delegates from nearly 90 countries from all corners of the globe and from disciplines as diverse as engineering, government, the military and environmental management.

And we were there to answer the question how the concept of the rule of law can be promoted and entrenched in all communities - in developed and developing countries, in stable and unstable societies. We were grappling with issues of why the rule of law matters to both the hungry and the overfed.

I had left our good republic in the midst of the Eskom governance debacle, at a time when it was clear that somewhere rules had been seriously breached and politicians and interest groups had gone where they should not have. While freezing in the Vienna winter, news came through that the deputy minister of police had declared that we must all accept that innocent people would be killed in the execution of the government's new shoot-to-kill anti-crime strategy.

In the country across the Limpopo the octogenarian president and his ruling party were persisting with the persecution and prosecution of political opponents. Across the Atlantic the president of the US appeared to be vacillating on whether to make good on his promise to close Guantanamo Bay and his secretary of state was contradicting the White House's stance on Israel curbing further illegal settlements on Palestinian land. Elsewhere, governments were behaving badly and giving the middle finger to the concept of the rule of law.

So we racked our brains about what could be done to make the human race appreciate the rule of law and not just treat it as a nice to have; how it is not just something for the sophisticates in our midst, but the very basis for creating "safe, healthy and just" societies.

The four basic principles of the discussion, based on previous deliberations, were that:

The government and its officials and agents are accountable under the law;

The laws are clear, publicised, stable and fair, and protect fundamental rights, including the security of persons and property;

The process by which the laws are enacted, administered and enforced is accessible, fair and efficient; and

Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources, and reflect the make-up of the communities they serve.

In pursuance of this, the WJP has designed an index that measures a country's adherence to the rule of law using the above criteria.

After test-driving the index on six countries in different parts of the world and in various stages of development, the measurement was extended to 35 countries - it will cover 100 by 2011 - the results of which were made known this week. While it does not rank countries from top to bottom, it measures a nation's performance against neighbours, countries at its level of development and then, against the top performer in a particular category of behaviour.

For instance, South Africa was measured against sub-Saharan neighbours and upper middle-income countries such as Mexico, Turkey, Argentina and Poland. It was then also compared to other top performers from whichever income group.

It makes for interesting and sobering reading for South Africans and our governors. We do relatively well and outscore our neighbours and upper middle-income peers in the area of rights.

We are commended for having comprehensible laws, the right to legal representation in criminal cases, a government that subjects itself to independent audits, the definition and limitation of the powers of government and adherence to constitution and laws.

We do not do well, however, when it comes to the issues of protecting our citizens and ensuring that the criminal justice system does its job efficiently and expeditiously. In the areas of "crimes against persons prohibited and punished" our regional neighbours and upper middle-income peers far outshine us. They also leave us behind in the area of "court access without undue procedural hurdles", something any rights-based constitutional state such as ours should be ashamed of.

We are middling in areas such as the "competence and sufficient number of judicial officers", government being open to the public and, for some inexplicable reason, "civilian control over police and the military".

Now this index is by no means the definitive gauge of where a country is at; it complements many other measures of political and socioeconomic progress by multilateral forums, civil society organisations and our own government institutions.

But it would be a big mistake if the government were to treat it as it did the African Peer Review Mechanism - our very own brainchild - which we killed because the independent who ran it dared make some adverse findings against our good republic.