Get pol­i­tics out of money and all else fol­lows

The Star Early Edition - - LETTERS - Martin van Staden

SOUTH Africa is glob­ally in­fa­mous for vi­o­lent crime and rape. Law en­force­ment has a mon­u­men­tal job and the ANC pol­icy con­fer­ence at the end of June, rightly, has safety and se­cu­rity on its rad­i­cal trans­for­ma­tion agenda.

The Free Market Foun­da­tion (FMF) con­tin­ues to ad­vo­cate for rad­i­cal trans­for­ma­tion of the crim­i­nal jus­tice sys­tem to en­sure law, or­der, peace and se­cu­rity and the tran­si­tion from the apartheid-era au­thor­i­tar­ian be­he­moth into a sys­tem that serves to pro­tect the peo­ple and hold the gov­ern­ment to ac­count.

De­crim­i­nal­is­ing vic­tim­less crimes, re­mov­ing in­cen­tives for cor­rup­tion within dis­cre­tionary pow­ers and keep­ing the ju­di­ciary in­de­pen­dent would be a good start.

The FMF calls on the ANC to abol­ish vic­tim­less crimes, which in­clude pros­ti­tu­tion, some traf­fic of­fences, deal­ing in drugs and con­tra­ven­ing ex­change reg­u­la­tions.

“Vic­tim­less crimes” are those acts or omis­sions crim­i­nalised by the gov­ern­ment de­spite there be­ing no com­plainant. Pur­su­ing vic­tim­less crimes pre­vents the po­lice from fight­ing real crim­i­nals.

Po­lice re­sources are un­der pres­sure. One way to al­le­vi­ate this is to stop wast­ing time and re­sources pur­su­ing value-sub­jec­tive crimes where no in­di­vid­ual rights have been vi­o­lated and al­low the po­lice to fo­cus on real crimes against per­sons and prop­erty.

The prac­ti­cal case is ob­vi­ous – the po­lice re­sources tar­geted ef­fi­ciently – but there is also a philo­soph­i­cal ar­gu­ment.

Our lib­eral demo­cratic so­ci­ety places a high value on in­di­vid­ual lib­erty.

The de­crim­i­nal­i­sa­tion of vic­tim­less crimes would mean le­gal­is­ing the ac­tions of a sub­stan­tial num­ber of or­di­nary, well-in­ten­tioned cit­i­zens who as­pire only to get on with life with­out vi­o­lat­ing the rights of those around them but who, of­ten with­out in­ten­tion, fall foul of the law.

The sheer num­ber of traf­fic reg­u­la­tions, which are of­ten ar­bi­trary and some­times un­known to mo­torists, turns prac­ti­cally all cit­i­zens into crim­i­nals. Cit­i­zens seek­ing help with drug abuse are deemed crim­i­nals.

Out­law­ing pros­ti­tu­tion – the act of en­gag­ing in vol­un­tary con­duct for money – turns many, mainly women, into crim­i­nals and the re­cent res­o­lu­tion by the South African Law Re­form Com­mis­sion to keep pros­ti­tu­tion a crime is mis­taken.

Cor­rup­tion is a ma­jor crime in South Africa. Yet the ma­jor cause of cor­rup­tion is the in­creas­ing use of dis­cre­tionary pow­ers by of­fi­cials, which presents those who hold it with ir­re­sistible in­cen­tives.

The only way to get “money out of pol­i­tics” is to get pol­i­tics out of money first and en­sure of­fi­cials are bound by strict and un­am­bigu­ous cri­te­ria in the ex­er­cise of their pow­ers.

A crit­i­cal step to­wards a mod­ern and in­de­pen­dent le­gal sys­tem is to stop the ill-con­ceived idea of only ap­point­ing judges with a “pro­gres­sive” or “so­cial minded” ap­proach.

This is dan­ger­ous and con­trary to the rule of law.

An in­de­pen­dent ju­di­ciary is fun­da­men­tal to a well-func­tion­ing democ­racy.

Politi­cis­ing the ju­di­ciary will make the cor­rup­tion prob­lem worse and the de­ci­sion by the rul­ing party to con­sider mak­ing a “pro­gres­sive” mind­set of so­cial ac­tivism part of the cri­te­ria for ap­point­ing judges to the bench is a dan­ger­ous move.

In this in­stance “pro­gres­sive” means the ju­di­ciary must favour the gov­ern­ment’s action in eco­nomic and so­cial af­fairs rather than em­pha­sis­ing in­di­vid­ual rights.

Judges should fol­low the let­ter of the con­sti­tu­tion and not the ide­o­log­i­cal pref­er­ences of who­ever con­trols the gov­ern­ment. Con­sti­tu­tional democ­racy places less em­pha­sis on which po­lit­i­cal party gov­erns at any par­tic­u­lar time and more on the val­ues in the con­sti­tu­tion it­self.

South African judges are renowned for their emi­nence, im­par­tial­ity and re­spect for the law. If value-sub­jec­tive ap­point­ment cri­te­ria such as “pro­gres­sivism” or “so­cial ac­tivism” are ap­plied to the ju­di­ciary, the out­come is dan­ger­ously un­pre­dictable and stands to dele­git­imise the courts en­tirely.

Politi­cis­ing the ju­di­ciary will take our courts out of the dis­pute-re­solv­ing busi­ness and make them a third house of Par­lia­ment. Free Market Foun­da­tion FMF le­gal re­searcher


PRO­FES­SIONAL: The writer says de­crim­i­nal­is­ing ‘vic­tim­less’ crimes such as pros­ti­tu­tion will free up the po­lice to fight cor­rup­tion and other crimes threat­en­ing the sta­bil­ity of the coun­try.

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