The state of the Rule of Law in South AfricaThe supremacy of the Constitution and the rule of law are enshrined in section 1 of the founding provisions of the South African Constitution. This effectively means that ours is a system in which all laws and conduct have to be consistent with our founding norms and values on pain of being struck down by the courts as invalid. While the Constitution itself is contained in a single document drafted by the founders of our new constitutional order, the rule of law is less easily identified but no less important for the success of the democratic project the nation embarked upon in 1994.
Defining the rule of law has proved to be a policy laden and tricky affair since time immemorial. The most comprehensive and internationally acceptable definition is that of the World Justice Project, which is dedicated to advancing the rule of law around the world. As used by the World Justice Project, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
"The government and its officials and agents are accountable under the law;
The laws are clear, publicized, stable and fair, and protect fundamental human rights, including the security of persons and property;
The process by which laws are enacted, administered, and enforced is accessible, fair and efficient;
Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve."
The World Justice Project has recently released its latest Rule of Law Index in respect of 97 countries in which measurement of the various dimensions of the rule of law have been taken. South Africa is one of these countries, and has been since the inception of the Project. It is of interest to those who live in and trade with South Africa to take cognisance of the progress being made with embedding the rule of law in the governance of the country. Emerging trends can be observed and slippage countered by examining and comparing the scores achieved from time to time.
For present purposes it is sufficient to compare the factors measured in 2011 with those measured in 2012 in respect of SA:
|1. Limited Government Powers
|2. Absence of Corruption
|3. Order and Security
|4. Fundamental Rights
|5. Open Government
|6. Regulatory Enforcement
|7. Access to Civil Justice
|8. Access to Criminal Justice
|A perfect score is 1.00 and an abysmal one 0.00
These scores place South Africa in the mid-range of global scores and toward the upper end of regional rankings.
The passage of the Protection of State Information Bill through parliament later this year is likely to have an adverse impact on the improved open governance score. The SAPS Amendment Act of 2012, which minimally tweaked the Hawks, and rising levels of corruption account for the lower score on the "Absence of Corruption" factor. The cost of civil litigation is likely to have influenced the poorer score for access to civil justice, while court delays and under-funding of the criminal justice administration, with awaiting trial prisoners languishing in jail for extended periods, explain the only score under 50%, that for access to criminal justice.
As corruption has the potential to completely derail the democratic project in South Africa, it is necessary to pay particular regard to the marked slippage in the score from .61 to .50 in only one year. The National Planning Commission has a plan for dealing with corruption that does not take proper cognisance of the decision of the majority of the Constitutional Court in the Glenister case about the suitability of the Hawks as our national anti-corruption entity. The passage of the SAPS Amendment Act of 2012 was a minimalistic response to the findings of the Court; some findings were apparently ignored and others misconstrued in the efforts to do as little as possible to satisfy the Court that the changes effected will produce an adequately independent and effective anti-corruption entity that is compliant with the international obligations that SA has undertaken in treaties at international, continental and regional levels.
Not surprisingly, neither Mr Glenister nor the Helen Suzman Foundation, which was a friend of the court in the case fought by Mr Glenister, is satisfied that the judgment has been complied with by the authorities. They are both now attacking the constitutionality of the amended legislation in the Western Cape High Court, having been refused direct access to the Constitutional Court for the further ventilation of the important, and urgent, issues which their attack raises.
It is instructive to look further afield for inspiration in the fight against corruption. A recently released compendium prepared on a non-partisan basis for the benefit of US policy makers lists seven proposals for fighting corruption in trade with Africa.
1. Develop creative, effective mechanisms to help companies compete while complying.
2. Do not undermine global progress in fighting corruption by tinkering with the Foreign Corrupt Practices Act.
3. Reward countries that comply with international anti-corruption and commercial laws.
4. Strongly support implementation of existing anti-bribery conventions now in force.
5. Develop UN monitoring mechanisms like that of the OECD Anti-Bribery Convention.
6. Consider addition of protocol to OECD Convention requiring domestic legislation.
7. Seek new protocol to African Union Convention prohibiting bribery of foreign officials.
All of these proposals are aimed at ending the excuse that "you can't do business in Africa if you are not prepared to pay a bribe." Of particular relevance to South Africa is the reliance upon the Organisation for Economic Co-operation and Development (OECD) Convention to which South Africa is a party. The guidelines developed by the experts in the OECD, who have made it their life's work to counter corruption, were embraced by the Constitutional Court in its judgment in the Glenister case. Specialisation, training, adequate independence from political interference or influence, proper and guaranteed resourcing and security of tenure are the hallmarks of an effective anti-corruption entity. These are the qualities the Court singled out in its judgment and they ought to be taken on board in the legislation if SA is to reverse the slippage on its rule of law index "absence of corruption" score. The Hawks, both in their pre 2012 and post 2012 incarnations simply do not cut it as an effective anti-corruption entity. The political will to address this must be generated if further slippage is to be avoided. The reward for tackling corruption effectively is to be found in an increase in foreign direct investment that creates jobs, promotes progress and ensures prosperity for all. Engaged citizens, the mandarins of the National Planning Commission and the officials in government tasked with the issues around tackling corruption should have regard to the compendium referred to above. See Working Group On Africa Compendium.
Paul Hoffman SC
9 January 2013.