A report published by the Institute for Race Relations (IRR) this week says if the founding ideals of the post-apartheid South Africa was a train, it would already have derailed and crashed into some a smelly creek. So lawless is the state run by president Jacob Zuma that the same state has no jurisdiction to even attempt to fight common crime.
The report entitled Going off the Rails: The Slide Towards the Lawless South African State, written by John Kane-Berman says unlike the South Africa of the apartheid era, which was characterised by the doctrine of parliamentary supremacy, the post-apartheid state was supposed to be a Rechtsstaat “in which the rule of law would be supreme, power would be limited, and the courts would have the final say”. However, “this edifice, and these ideals are under threat”.
Kane-Berman, a policy fellow at the IRR, lists more than 200 incidents of lawless behaviour on the part of the state and its officials. Yet, he writes, these are merely “the tip of a large iceberg”.
According to Kane-Berman the worst incidents of the state’s lawless behaviour have happened under the rule of Zuma. These include the sabotage by the African National Congress of the parliamentary investigation into the R47 billion arms deal which first came to light nearly 17 years ago. “This undermined one of the founding principles of the new South Africa, which was accountability of the executive to Parliament.
Some of the lawless actions he lists are:
Unconstitutional actions:
– Constitutional Court finds president violated Constitution in undermining public protector;
– Constitutional Court says Parliament also violated the Constitution over the public protector;
– President fails to sign legislation to combat financial crime despite constitutional obligation;
– Supreme Court of Appeal rules Parliament’s bans on broadcasts unconstitutional;
– High Court says Judicial Service Commission acted unconstitutionally in leaving vacancies;
– Unconstitutional attempt to extend term of chief justice avoided by that judge’s withdrawal;
– Constitutional Court invalidates legislation establishing Hawks;
– Parliament fails twice to remedy defects in Hawks legislation despite court instructions; and
– Ministry of Defence accused of unconstitutional deployment of the defence force
As unconstitutional laws he lists:
– Parliament ignores president’s objection that minerals bill is unconstitutional;
– Citizenship Act of 1995 said to be unconstitutional by providing for citizenship deprivation;
– High Court invalidates legislation establishing medical care price list; and
– Speaker of National Assembly expresses concern over volume of unconstitutional legislation
As for unconstitutional policies, he lists:
– Various organisations say revolutionary ideology is incompatible with the Constitution;
– Cadre deployment policy said to be out of keeping with the Constitution; and
– Enforcement of racial quotas said to be out of keeping with the Constitution.
Unlawful orders by the state were:
– Public protector says transport minister’s directive to halt rail investigation is unlawful;
– President Jacob Zuma unlawfully decrees there will be no fee increases at universities;
– Lawmaking procedures not followed;
– Constitutional Court strikes down land act as unconstitutional for lack of public participation;
– Parliament fails to allow adequate public participation in the processing of three other bills;
– Parliamentary rules violated/institutions undermined;
– Energy minister refuses to hand over nuclear documents required by Parliament;
– Energy minister fails to hand over Petro SA documents required by Parliament;
– Defence minister refuses to cooperate with standing committee on public accounts (Scopa); and
– ANC uses parliamentary majority to thwart Scopa probe into R47 billion arms deal
Kane-Burman says “the culprits responsible for lawlessness run from the president down to clerks of the court, from directors general to immigration officials, from municipal managers to policemen, from cabinet ministers to petty bureaucrats”.
The lawlessness ranges from protecting the criminal, to hounding the innocent, to crushing the poor. “It runs from the unconstitutional to the outright criminal, from the brazen and defiant, to the negligent or ignorant. It embraces slamming down the telephone on judges as well as victimising traffic policemen who flag down celebrities.”
The victims of lawless state behaviour “include prisoners denied medical treatment, refugees forced to pay bribes, hawkers whose goods are unlawfully confiscated, and poor people unlawfully evicted from shacks which are then unlawfully demolished”.
However, Kane-Berman says, they also include taxpayers who get fleeced, mining companies whose licence applications are unlawfully denied, and suppliers who do not get paid for their services. “Moreover, sometimes instead of bowing to the courts and the law, the government seeks – unlawfully – to change the law”.
Kane-Berman says he finds it difficult to see how crime in South Africa can be successfully combated when the state itself has become more and more lawless and even criminal.
