13 June 2017
Radical legal transformation: Embrace Mandela’s rule of law not apartheid arbitrary governance
South Africa’s democracy is founded on the “supremacy of the constitution and rule of law.” The Free Market Foundation (FMF) has been committed to advancing the rule of law since its founding in 1975 and continues to advocate this founding democratic principle.
Nelson Mandela said, “[The rule of law] refers to a structural exercise of rule as opposed to the idiosyncratic will of kings and princes. Even where the latter may express itself benevolently the former is morally and politically superior. Where the rule of law does not apply, rulers assume entitlement to rule; the rule of law, on the other hand, places the emphasis upon structured responsibility and obligation.” The rule of law prevails and not the arbitrary rule of man. The foundations of a true democratic society depend on this concept and all governments and political parties must abide by the rule of law.
The rule of law is sacrosanct. It has elevated constitutional status being in the first section of the Constitution and it may only be amended by a combination of 75% of the National Assembly and six of the provinces in the National Council of Provinces. Unlike the Bill of Rights, the founding provisions are absolute because they are not subject to the limitation of rights in section 36. Everything in the Constitution must be interpreted in accordance with the rule of law, which sets out standards with which all law and practise must comply.
The rule of law is not the same as freedom; justice or property rights but increases the likelihood of those ideals being attained.
In South Africa today legislation or regulations increasingly give unelected officials dictatorial powers over the lives of ordinary people and businesses and it is here that the application of the rule of law is most essential. All empowering provisions must set out objective criteria with which officials must comply otherwise the way is open to arbitrary rules and discretionary power and therefore becomes ‘the rule of man’.
Regulators are given unbridled discretionary rather than circumscribed powers that can be reviewed in court, govern many industries in SA today. This is absolutely contrary to the rule of law. Increasingly these regulators can revoke licenses and initiate malicious ‘investigations’ to intimidate the firms into paying bribes or into staying silent when bad policy is adopted. This is happening because the state is playing a bigger role. To take its place as a global democratic power, post-apartheid South Africa must transform from the legacy of apartheid into a decentralised society.
In their best selling book “Let the People Govern”, 1998, FMF executive director Leon Louw and his wife Frances Kendall said that power should be devolved rather than centralised, because “it ensures that many more people live under the laws of their choice”. For example in a centralised nation with few or no provinces, a vote of 50+1% vote in favour of abolishing African customary law would be imposed on all of the country even if individuals living according to African custom dominate one region. However, if there are many provinces with certain exclusive law-making powers, regions with a majority of people living according to African custom can adopt customary law and others can opt out.
There is a proposal to reduce the number of provinces in South Africa to six. If this happens, there will be greater centralisation and imposition by some regions over others. This is the logic that led to the Cape Province progressively losing franchise for black then coloured South Africans under apartheid. The Transvaal and Orange Free State, due to increasing centralisation, were able to exercise their racist will over the more liberally inclined Cape. South Africa must not repeat these mistakes.
Note to the Editor
This media release is 9 in a series of 10 in which the Free Market Foundation (FMF) will provide alternatives to the various policy discussion planks of the African National Congress’ 2017 National Policy Conference.
Previous MEDIA RELEASES in this series:
1. ANC Conference must adopt real radical economic transformation – not more of the same paternal statism
2. ANC Conference must reject ICT White Paper and Hate Speech Bill for South Africa to drop Apartheidesque communications policy
3. Radical economic transformation means South Africans keep and control their own money
4a. For radical economic transformation in energy, adopt the 1998 White Paper
4b. Yes – introduce radical economic transformation in labour policy and help 9 million unemployed
5. “Amandla! Awethu!” means power to the people, not government – it’s time to decentralise!
6. 23 years post-apartheid, South Africa needs to be radical about land reform
7. Education needs radical transformation. Don’t leave our children in the apartheid era
8. Radical healthcare transformation: Bring healthcare back to the people and away from government
You can access more IN-DEPTH DOCUMENTATION regarding the above on the FMF’s website:
Submission to the High Level Panel on the Rule of Law
Paper on “What is the Rule of Law?” by Leon Louw
The FMF will be hosting a MEDIA BRIEFING on 21 June 2017…
The secret of China’s success – innovation and entrepreneurship
Dr Martyn Davies will answer Leon Louw’s questions on what makes Chinese SPECIAL ECONOMIC ZONES (SEZs) special and why, if South Africa is serious about RADICAL ECONOMIC TRANSFORMATION, it should learn from China
FMF defines Radical Economic Transformation as being less of the same and more of policies that result in transformation and that elusive inclusive growth
RSVP essential: http://www.freemarketfoundation.com/View-Event?i=145