Alistair Price
Law Faculty, University of Cape Town

It is difficult to drum up widespread, grassroots political support for the rule of law.  In the eyes of many people, the rule of law does not put food on the table.  Worse still, the law can be a source of oppression.  Governments and law-enforcement officials can and do commit crimes.  The role of law in our Apartheid history is an awful example. Understandably, not all South Africans hold the law in high regard.

Nonetheless, the rule of law is of huge importance.  It is a political ideal that we should all be fighting for.  To see why, imagine a hypothetical society where the rule of law is failing.  Plainclothes police officers shoot dead a man they claim was acting suspiciously, but the routine criminal investigation of the killing that would normally follow is obstructed by the police chief.  Legislation is passed conferring broad, vague powers on government officials for ‘the furtherance of national security’, while public scrutiny of their use in the ordinary courts is denied; objections to the breadth and vagueness of these measures are met with responses that the authorities can be trusted to wield their powers fairly. Officials start to disobey court orders systematically.  Magistrates receive anonymous death-threats.  Independently-minded judges are lambasted by high-powered government officials.  Corporate property developers circumvent regulations to protect precious environmental areas, without consistent official response.  Laws designed to protect employees in dangerous workplaces are widely flouted.  Bribes are commonplace.  There is little protection for the honest, hardworking entrepreneur.  Some wrongdoers are prosecuted for their crimes, while others – apparently well-connected – are not.  People start to rely largely on the patronage or mercy of officials to receive state-sponsored benefits.  There is a clampdown on free speech:  investigative journalists and editors are jailed for stories claiming to expose corruption.  Most chilling is the lawless violence.  Murderers are not brought to book.  Worse yet, there are rumours of nameless officials knocking on doors at night and of people disappearing.

That is what a society without the rule of law looks like. Surely no one would want to live there? To make sure we never do in South Africa’s future, we all need to do our bit to protect and promote the rule of law.

So what does the rule of law require? Several things. Most basically, it requires that our society be ruled by law, and not by the arbitrary (often self-interested) decisions of the small group of men and women who happen to wield public and private power at any given point in time.  The law must be applied by law-enforcement agencies consistently and impartially.  Government officials, along with everyone else, should be legally and publicly accountable in the courts.  And the courts must be independent enough – as a matter of institutional design and judicial mind-set – from other state organs to make this a real check on power.  Equally importantly, the laws must provide everyone with reliable guidance in advance about what is legally required, permitted and prohibited.  If the laws are unclear, secret, constantly changing, or retroactive, or if officials and judges do not comply with the law impartially without fear or favour, then it becomes impossible to act within the law.

By itself, the rule of law is not enough to promote justice in South Africa.  We should be careful not to place over-exaggerated faith in the capacity of law to improve society.  It is crucial to respect and promote other political ideals too, like distributive fairness, freedom of speech, and environmental sustainability.  Nonetheless, it is very unlikely that we will succeed in transforming South Africa for the better unless we work hard to maintain the rule of law in the process.  Sticking to the rule of law will help to keep governmental and private power part of the solution, rather than part of the problem.  It will also make society safer. 

What can we do?  First, we cannot simply blame those in government.  We also need to take responsibility ourselves to protect and promote the rule of law.  For example, we can stop speeding on our roads.  We can stop paying bribes.  We can bravely start reporting all suspected crimes, not only crimes against person and property.  We can support our judges, magistrates and court officials, most of whom work tirelessly to uphold the rule of law.  Of course, we must also never cease seeking to hold the government and law-enforcement agencies publicly accountable.  The same goes for powerful private corporations as well as labour unions.  The recent tragedy at Marikana provides a vivid example of a catastrophic failure of the rule of law.  Fostering the rule of law in South Africa, and indeed throughout Africa, could scarcely be more important.  The sooner we all realise this, and start to act upon it, the better.

Alistair Price Law Faculty, University of Cape Town
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