The Rule of Law (RoL) protects citizens from abuse of power and corruption by politicians and officials and safeguards individual rights and liberty. The RoL stands between a civilised society and tyranny. State capture was made possible in South Africa as a result of a systematic violation of the RoL that facilitated arbitrary political action. Under Zuma, the systematic violation of the RoL enabled the Guptas and widespread corruption to flourish.
This was the solemn warning from Rex van Schalkwyk, Chairman of the FMF Rule of Law Board of Advisors and former judge of the Supreme Court of South Africa, at an recent FMF media briefing in Johannesburg.
The Rule of Law is a complex concept to grasp and is frequently misunderstood even by lawyers. The RoL is not about law enforcement. Its fundamental characteristic can be captured in the phrase: the accountable ruler. The ruler, whoever or whatever that entity may be is bound buy the law. The phrase that “no one is above the law” comes directly from the Rule of Law.
Van Schalkwyk said that in the Zuma era we had the rule of man instead of the Rule of Law. Rule of man is when individual rights and obligations are determined by politicians and officials who abuse their position by not applying the law. Instead they use their own arbitrary discretion and the result is state capture and corruption.
Van Schalkwyk said, “The Rule of Law requires an ‘accountable ruler’: this means that in a properly functioning democracy, the ruler (government) is subordinate to the law and subordinate to the people, and not the master of the people. It follows that laws made by such a government must serve the collective interests of the people. Any law that does not serve that purpose is illegitimate.”
The supposed (although not the earliest) origin of the Rule of Law in English jurisprudence was the Magna Carta of 1215 which contained 63 clauses. Only three are relevant today:
- The right of a free man to a fair trial. No deprivation of liberty or property without due process.
- No individual is above the law.
- There must be a form of representative participation in the process of government. No taxation without representation.
In recent FMF research undertaken by lawyer Gary Moore, “23 pieces of recent legislation analysed show that 22 were drafted without apparent concern for the Rule of Law”, said Van Schalkwyk. This highlights a dearth of care for due process and or concern for the fundamental principles which underpin a democratic society.
“Much of the law enacted by the ANC shows a subliminal, innate hostility to the free market, the business community and to the liberty of the individual”, said Van Schalkwyk. “This is particularly apparent in the overtly oppressive legislation in the mining industry and in that regulating the Financial Services sector including the Financial Advisory and Intermediary Services Act 2002 (FAIS) and the Twin Peaks model”. He also cited the South African Schools Act 1996; the National Health Act 2003 and the Currency and Exchanges Act 1933.
Van Schalkwyk said, “All of these laws and others undermine two broad principles of the Rule of Law. These are:
- Where Parliament makes provision for regulatory supervision of an activity (in those cases where future events are unpredictable) the purpose for which the regulatory authority may act must be clearly defined and its scope restricted to only that purpose and its objective not otherwise reasonably attainable; and
- The delegation of law-making authority to a cabinet minister or other official of state is strictly forbidden by the imperative that Parliament (and other competent law-making authorities like municipal councils) is the only competent law-making authority”.
In brief, this means that the scope and applicability of any legislation must be clearly defined and limited to the activity in question and that only law-makers – Parliament – are entitled to make laws. Yet now, we have unelected officials and regulators making de facto law by regulations and rendering the legislative process redundant. Thus, Zuma and corruption prevail.