Democracy must be defended by example

Sunday Independent

The saga relating to the former crime intelligence chief, Richard Mdluli, has become a farce and exemplifies a situation that makes a mockery of the rule of law in SA.

The media have reported that Mdluli has been suspended three times in as many months.

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SUSPENDED: In this file picture, former crime intelligence boss Richard Mdluli leaves the Boksburg regional court, where his corruption case was transfered to the High Court.

	Picture: Steve Lawrence05.06.2012. Ike Motlaung lawyer of the Suspended crime intelligence chief Richard Mdluli' during the Freedom Under Law, Corruption watch and the Social Justice Coalition arguing for Mdluli's suspension in the Pretoria High Court

Picture: Sizwe Ndingane

On April 4 last year, he was suspended by Bheki Cele, on March 28 this year the murder charges against him were dropped and he was reinstated.

On May 9, he was demoted as the intelligence chief.

On May 26, he was suspended by Nhlanhla Mkhwanazi.

On June 1, he was reinstated by the Labour Court.

Finally, on June 2, Mdluli was again suspended by the Labour Court.

Although all of this could be described as a comedy of errors, we are not dealing with the theatre of the absurd but the operation of a supreme constitution, premised on liberal democracy.

Although the rule of law has its genesis in the UK, the concept itself is an idea having a universal validity.

The principles and values expounded as part of the rule of law are not uniquely the product of British constitutional and jurisprudential development and law, but are also found in SA’s Roman-Dutch jurisprudential heritage.

The infamous erosion of the rule of law in the 46 years of National Party hegemony in SA, with the enactment of draconian security laws, constituted a period of constitutional retrogression.

Although the idea of the rule of law has an ancient lineage, it was popularised by Professor AV Dicey in his epochal work, Introduction to the Law of the Constitution.

According to Dicey, the doctrine involves at least three seminal but kindred ideas.

Dicey’s theory in essence amounts to the protection of the basic rights of citizens through pre-announced rules administered by the ordinary courts.

First, the principle of legality, which states that nobody may be deprived of rights and freedoms through the arbitrary exercise of wide discretionary powers by the executive.

This may only be done by the ordinary courts of the land.

There is a fundamental difference between legality and lawfulness.

A government having access to legislative sovereignty may sanction draconian laws that amount to the rule of discretion and clothe such laws with lawfulness.

However, such laws violate the principle of legality. Hitler’s notorious Enabling Act of March 23 1933, euphemistically designated the “law for the relief of the people and the Reich”, clothed with lawfulness all the abhorrent deeds which were to characterise his diabolical regime by conferring legislative authority on the Nazi cabinet and gave it the authority even to depart from the constitution itself.

The same occurred in SA under the apartheid era in relation to legislation authorising institutional discrimination and draconian security measures, like section 29 of the Internal Security Act, authorising indefinite arbitrary conduct.

The kind of arbitrary action that has epitomised the Mdluli saga is the very antithesis of the principle of legality.

Second, the rule of law encapsulates the principle of equality, which requires that nobody is above the law and everybody is subject to the jurisdiction of ordinary courts. In effect Dicey was giving expression to the principle of equality before the law.

This required, according to Dicey, that not only that with us no man is above the law, but that here every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the ordinary tribunals.

Equality lies at the heart of the new SA constitution of 1996. It permeates and defines the very ethos upon which this constitution is premised.

It is therefore part of the rule of law as equality before the law.

Regrettably, Mdluli has behaved, because he is apparently politically well connected, as if he is above the law.

Third, the rule of law involves, according to Dicey, a general principle that the rights of individuals are effectively protected by the action and decisions of ordinary courts rather than by guarantees contained in a constitution.

In SA today, this general proposition is wide enough to include both the principles of equality and legality. It is also wide enough to incorporate a substantive element, which relates to certain fundamental values and liberties, protected by the common law and the constitution.

The rule of law by itself, especially when allied to the doctrine of parliamentary sovereignty provided for a weak form of constitutionalism.

The inherent institutional morality and principles encapsulated in the rule of law now find cogent expression in the constitution containing a justiciable Bill of Rights in SA.

However, the rule of law, as part of the theory of constitutionalism or limited government, can never be taken for granted since the cost of liberty is eternal vigilance.

The history of the Mdluli debacle indicates that the rule of law is under threat and needs to be upheld and defended in both letter and spirit in SA.

The lesson to be learned is that people, even those who are politically connected, cannot in any circumstances be treated as a law unto themselves.

This undermines respect for the law and the constitution itself.

South Africans, having conceived and crafted an exemplary democratic system of government premised on the rule of law at a sublimely great cost, must continue to protect, promote and advance it.

Democracy needs to be defended by example against the predations of those in the new body politic who are politically unscrupulous and wish to emasculate the rule of law. We therefore need to take concerted and remedial action to ensure that the rule of law is not undermined.

In this regard more than anything else, SA requires cogent, unequivocal and enlightened political and moral leadership for the wellbeing of our cherished but fledgling democracy, premised on the rule of law.

n Devenish is a former professor of Public Law at the University of KwaZulu-Natal (Durban). He was one of the scholars who drafted the Interim Constitution in 1993.

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