Get politics out of money and all else follows
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
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