Leave pol­i­tics out of our in­sti­tu­tions

The Star Early Edition - - LETTERS - Martin van Staden

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


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.

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