Leave politics out of our institutions
INSTITUTIONS and the rule of law are the essential elements that protect individual South Africans from the excesses and abuses of state power. The recent fiasco in which the public protector recommended changes to the constitution is an example of institutions gone awry.
Constitutionalism, as a branch of jurisprudence, did not develop to foster an effective government but to restrain government interference in the personal and economic lives of ordinary people. The public protector’s recommendation does the opposite: It proposes to alter its establishing statute – the constitution – to change the nature of our central bank for seemingly political reasons.
The markets reacted predictably and today South Africans are a little poorer than they were yesterday.
The business of our institutions should not be to make life harder for anyone except the government.
Institutions are divorced from the politics of the day because they are meant to be consistent and as immune as possible from political interference. In a country with rich constitutionalism and strong institutions like the US, the character of the country does not change when political leadership does.
Donald Trump’s influence on America’s status as a bastion of freedom and democracy will be negligible. He might fiddle with the composition and policy of the cabinet, but the Supreme Court and the sturdy devolution of power to states ensure the president’s reach does not extend too far.
In other countries, such as ours, the political leadership of the day has far greater influence and institutions are secondary considerations. We refer to the terms of our post-apartheid presidents as “eras” – the Mandela-era, the Mbeki-era, and the Zuma-era – each with their own style that had a profound impact on South Africa’s world image. Before 1994, no matter who was president, we simply had “the apartheid-era” because the institution of apartheid was strong in a bad way.
Our political leadership does not have to reach far to impact the lives of South Africans negatively. That a political appointment practically brought the economy to its knees is indicative enough that the situation is not right.
South Africa’s institutions might appear strong on paper, yet it is evident that the executive branch of the government can act with a free hand. For instance, the Department of Mineral Resources’s recently published Mining Charter wiped more than R50 billion off the industry’s share value. Our institutions seem powerless to stop the government from enacting such destructive policy even when the charter’s history is questionable when it comes to public participation and impact assessments. What is the solution? Institutions must first be concerned with the government. There is no doubt private firms and individuals too can be corrupt, but the consequences of private sector corruption are limited. Government corruption and overreach, however, can potentially destroy economic growth and the livelihoods of millions. Private corruption is dealt with by market forces and failing that, the courts and the criminal justice system. Government corruption is dealt with politically.
Our institutions need to make sure the government does only that which it is designed to do – and does it well. Most of all, our institutions must never enable the growth of the government for political reasons – something our superior courts have been guilty of on occasion.
When institutions lose their character as a restraining force and become an enabling force they cease to be the custodians of constitutional democracy and the rule of law. Instead, they become part of a corruptible political process. When this happens, tyranny is inevitable. Legal researcher at the Free Market Foundation and academic programme director of students for Liberty in Southern Africa
WRITE TO US
TRESPASSING: Public Protector Busisiwe Mkhwebane’s recommendation proposes to alter the constitution – to change the nature of our central bank for seemingly political reasons, says the writer.