Rule of law is forgotten
AS A general rule, international law is South African law. There are, however, a few quirks in diplomatic and political customs between nations that should not be tolerated in South Africa.
The supreme law in South Africa is the constitution and the rule of law as provided in section 1(c) of the constitution. At the heart of the rule of law is the notion that the law will be applied to the political class as it would be applied to ordinary people. The opposite of the rule of law is the rule of man, where the elite exempt themselves from the laws they enforce on the rest of us.
Whether it is the rule of law or the rule of man that reigns in practice in South Africa is no longer as clear-cut as the constitution envisioned.
The Minister of International Relations and Co-operation sparked controversy recently when she granted immunity to the First Lady of Zimbabwe, who is suspected of having assaulted a South African woman. Section 7(2) of the Diplomatic Immunities and Privileges Act allows the Minister to confer immunity on an individual if it “is in the interest of the Republic”. The First Lady was not here to conduct any official Zimbabwean business but to visit relatives.
The rule of law requires officials and politicians not to be granted unbridled discretion in the exercise of their duties and for the law to be clear, unambiguous, and its application reasonably predictable.
The people of South Africa should have expected the First Lady to be detained and for a power meant mainly for affairs of state not to have been used to excuse criminal conduct. South Africans, unfortunately, have become so used to the absence of the rule of law that hardly anyone seems surprised by the minister’s decision.
Old guard lawyers would argue that the concept of the “public interest”, as contained in the Act, is clear in South African law. Practice, however, usually does not live up to theory. According to the minister, the conferment of immunity on Grace Mugabe was in the public interest.
It makes no difference that the minister apparently “agonised” about the issue and applied her mind. The problem is that it took her mind only and not strict criteria and legal principles, to determine the decision.
The judiciary is a strong institution because judges have to write lengthy explanations, based in established legal doctrine, on how they came to their conclusion. For the minister, it was a case of simply granting immunity and issuing confirmation thereof.
It should not be an “agonising” task for an executive functionary when it comes to enforcing the law. It should, sans unnecessary political considerations, be quite easy, and Parliament must facilitate this ease of governance by observing the principles of the rule of law in its legislative drafting.
The Diplomatic Immunities and Privileges Act needs to be changed to reflect that South Africa’s constitutional dispensation is founded on the rule of law.
For the minister to have the discretion to grant immunity at all – no doubt a necessary feature of a diplomatic state – criteria and guiding principles must be added to more clearly define the context and appropriateness of such a decision. “Public interest” is insufficient and inherently allows officials and politicians to legitimise otherwise nonsensical conduct for political reasons.
Decisions must also be justified in detail. “Safeguarding South Africa’s relationship with Zimbabwe” is not a good enough explanation. The wrath of Zimbabwe, which is, to all intents and purposes, dependent on South African employment, energy, and aid, is not something the South African government should fret about. It should be more concerned with upholding the rule of law.
There can no justice if political elites – whether foreign or domestic – are free to do as they please. Politicians assaulting unarmed women during Women’s Month without consequence does not bode well for the health of our legal order.
MARTIN VAN STADEN Legal researcher, Free Market Foundation Johannesburg
I AM not sure why Imraan Buccus describes the political conflict which left at least 15000 people dead between 1985 and April 1994 as ‘civil war’ between the IFP and the ANC (“Mobilisation needed against killings,” August 20).
It has been clearly shown in court cases and the TRC proceedings that it was apartheidsponsored violence, with complicity between security forces and warlords and thugs in both political camps. There were at least a further 4 000 politically-linked deaths between May 1994 and the end of 1998.
While I have voluminous amounts of material on the violence in the 2000s I have had neither the time nor inclination to compile any meaningful death statistics for the past 17 years.
I provided the Moerane Commission with a minimal list of deaths since 2011 based on information I could easily lay my hands on. Because of local government-related research I’ve been engaged in, I have kept a tally of known politically-linked deaths since the beginning of last year which is around three dozen – and that excludes the 90-plus killings which have occurred in Glebelands since March 2014 which are linked to political dynamics in the hostel (and alleged police complicity by acts of commission or omission).
MARY DE HAAS Violence Monitor Durban