The rule of law and the president

On 1 November 2011 in an address to a joint sitting of the National Assembly and the National Council of Provinces, President Zuma expressed his disquiet at the fact that “the courts” appeared to have assumed a role “above” that of the elected representatives of the people. Parliament, and the executive, he said, had been elected to represent the will of the people; the courts, which were the province of unelected judges, represented no constituency. Political disputes, he proclaimed, should be resolved politically.

The natural appeal of this position to the African National Congress (ANC), which commands a near two thirds majority in parliament, is immediately evident. If all disputes that originated in the political sphere are to be settled “politically”, they would all, inevitably, be resolved in favour of the ruling party. We would then, effectively, have a dictatorship of the anointed representatives of the majority.

Zuma’s views have been repeated by many commentators. Some suggest that since the courts appear to have usurped the role of their democratically elected representatives and consistently frustrate the will of the people, there is little purpose in participating in the democratic process.

A simple answer to this conundrum that has vexed so many supporters of the ANC is that if the elected representatives of the electorate and, in particular, of the ruling party, should abide consistently by the law, the problem would disappear. The real difficulty arises only when those who presume to rule come to believe that they can do so without obedience to the existing, and binding, law; when, in short, they exercise their assigned responsibility as though they can do so with impunity.

Frequently, a bill is published in Parliament that contains clauses that are manifestly unconstitutional. Despite repeated warnings from constitutional lawyers and others, the process grinds onwards until the defective legislation is finally passed. The inevitable constitutional challenge that follows demonstrates, not judicial activism, as some would contend, but legislative and executive obduracy.

The tendency of politicians, in particular, to view public affairs in terms of superior and subordinate authority is the real source of the confusion. The rule of law does not denote the superiority of any particular office or institution; what it does denote is an abstraction: the supremacy of the law. The law is not the province of any particular official or individual. If it “belongs” to anyone, it belongs to everyone. That is the majesty of the law: it can be invoked by the meanest individual against the most exalted conceit. And therein lies the guarantee of individual freedom.

The law enjoins all public officials to refrain from every manner of abuse of authority. In South Africa, the Constitution, which, with the rule of law, is the primary source of all law, requires of the president and all parliamentarians to make an oath of fealty to the Constitution. A breach of that oath is a matter of grave import, as has recently been demonstrated by the Constitutional Court’s judgment in the Nkandla saga. The president, who had spoken previously and disparagingly about his perception of the hierarchy of authority, was compelled, not by the courts, but by the law, to acknowledge his mistake and to make apology for the error of his ways.

The president was not summoned to appear before the court in person to give an account of his conduct. His legal representatives did so on his behalf in an atmosphere of respectful debate. The entire proceedings took place in his absence and involved, at times, a meticulous examination of the applicable law. The question then is, who would have been best qualified to undertake this task: the president himself? An official appointed by him, such as his minister of police? The courts?

The courts are the vehicle for the enforcement of the law, as indeed they should be on account of their specialised methods and procedures. These methods, honed over many centuries and bequeathed to us, are the temporary repository of an ongoing and ever-changing process. A collective organism that, at times, grows, and at others, is retarded. From this natural process a wisdom emerges that is nothing less than a distillation from the ages. A wisdom that requires no subordination, but only a graceful acknowledgement.

Author: Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the Chairman of the Free Market Foundation’s Rule of Law Board of Advisers.

An edited version of this article, titled If the law ‘belongs’ to anyone it belongs to all, was first published by Business Day on 15 April 2016 

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