The Rule of Law and moving SA forward

19 February 2019
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The Rule of Law is one of the ideals of our political morality. It refers to the ascendancy of law as such and of the institutions of law in a system of governance. South Africa is flirting dangerously with destabilising the Rule of Law when government repeatedly undermines the operation of the Rule of Law as it has been doing. This is detrimental to the country’s development.

The most important requirement of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms, rather than in an arbitrary, ad hoc, or purely discretionary manner based on personal preferences or ideology.

A thriving democracy requires the Rule of Law to function and for its laws to be enforced uniformly. Without the Rule of Law, we cannot have the fundamental values of a democracy, such as free and fair electoral systems, respect for human rights, and a vibrant and active civil society.

Respect for the Rule of Law is a key component to being a member of the international community. A country where the Rule of Law is established and not undermined, promotes and fosters an environment for economic and human development. The Rule of Law promotes social stability and legal certainty which, in turn, makes the country more attractive to foreign investors by clearly indicating the risks they take when making an investment.

Lack of investment will slow economic growth and deny both the public and private sectors the revenue needed to invest in education, industry, and social safety nets critical for sustainable development.

In June 2015, government allowed the Sudanese President, Omar al-Bashir to fly out of the country despite being under a legal duty to arrest and detain him for trial. Government then tried, unsuccessfully, to withdraw its membership from the International Criminal Court so that it would have no legal obligation to arrest al-Bashir.

South Africa’s National Prosecuting Authority (NPA) has been under fire for its lack of impartiality in recent years, too. The idea that a country has no free and unbiased means by which to prosecute those who break the law is harmful to the operation of the Rule of Law in deterring the politically and financially-connected from being brought to justice.

Government has made proposals for the amendment of the property clause in the Constitution, which will effectively allow it to expropriate property without compensation. The uncertainty of property ownership is inimical to South Africa’s economic prosperity as it undermines the potential for investment.

The amendment to the Constitution would benefit the ideology of the current ruling party in redistributing land (that will remain owned by the State) in the form of leases - at the expense of the Rule of Law.

Lack of property rights is inimical to a free market economy where one has no certainty about rights over their property. Expropriation with compensation is governed by the control of money available to government, whereas expropriation without compensation gives government the opportunity to expropriate without control.

The advancement of the ruling party’s ideology will undermine the Rule of Law by forcing investors to withhold, and even withdraw, capital from the country. This is detrimental to our future.

A lack of respect for and an undermining of the Rule of Law will have repercussions in the international community that South Africa is a part of. These recent developments in the ruling party’s political agenda will impact South Africa negatively, as it will be seen as a country no longer run according to the Rule of Law, but rather political whim.

The negative consequences will, in short, be a withdrawal by investors, migration of skills by disaffected citizens, breakdown in trade relations, and possible sanctions. The simple result is that South Africa, with a lack of economic impetus, will not be able to progress.

A commitment to a Rule of Law which is not only procedural, but substantive in nature, is essential to the progress of South Africa. The entrenchment of human and property rights is essential for the fair application of the law to every citizen irrespective of race or creed, and assurance of stability in the economy to insure investment in the country.

Matthew South is a legal researcher and adviser with an avid interest in the law, and especially the Rule of Law and constitutionalism.

 

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