While we await the outcome of ex-president Jacob Zuma’s invitation to try out orange jumpsuits for size, this is a good moment to reflect on the law and how it works for the ordinary person.
Since the 2015-16 Fees Must Fall and gender-based violence (#RuReferenceList) protests, I have been wondering why so many of our people protest as if we are in an authoritarian police state.
In a functioning democracy, when government goes wrong, you write letters, organise petitions and hold tame protests (which, my colleagues in the political sciences inform me, are described in the technical language of their discipline as “parades”).
If it comes to the worst, you organise to oust the government at the next election.
So why do so many of our people remain quiet over an extended period of discontent, until their rage spills out into out-of-control protest?
This is a symptom of a society that is ruled by power, not by law – exactly like an authoritarian police state. Speak out when something goes wrong, and you put yourself at risk. So you wait until so many people are angry that you have safety in numbers. But when you reach that point, you run the risk of nihilistic rage running out of control.
Yet no one can claim that our constitutional order defines such an authoritarian state. The problem is not with the constitutional order, but with its implementation. We have wonderful rights on paper but often not so much in reality.
Our constitution not only guarantees rights in a traditional legal framework but also in a context of social justice. So one must ask, how much is the imperative to social justice honoured in actual implementation of the law?
The government has promised free higher education for years without delivering. In 2018, in the aftermath of two years of angry protest, the National Student Financial Aid Scheme (NSFAS) system was altered from a soft loan to a scholarship. The results have been dramatic – NSFAS students in recent years have become the majority at the university still known as Rhodes. Yet why did it take angry protests to do this, that for many involved were quite traumatic?
Asking nicely had no effect. Angry protests got the job done. At least partially.
Fast forward to June 2021 when Makhanda saw a surge in angry protests resulting in a near-total shutdown. The result? A delegation of MECs from Bisho and a sudden interest in fixing long-standing problems. Once again, the government invites this form of protest by ignoring legitimate complaints and softer forms of protest.
So how does this relate to Zuma?
In a country where power substitutes for the law, the concept of the rule of law is foreign to many people. You can talk flowery legalese but it makes no difference to their personal circumstances. Sewerage flows through their house and it is pointless calling the local government to account because nothing happens. A local tavern violates every term of its liquor license and keeps you awake but there is no point complaining to the police because they won’t come. You need to go to a big city hospital and are told you have to sleep on the floor of the local hospital to await transport, and if you complain you get fobbed off with excuses.
In a society where indignities are a daily occurrence, a Big Man leader has some appeal.
The law doesn’t work for the ordinary person so someone who talks a good talk and sounds as if they are sticking it to the system has a lot of appeal.
The problem is that this does not fix a broken legal milieu. When Zuma was president, rather than improving the legal environment, he undermined it by appointing a criminal to head crime intelligence; trashing the government’s one world-class agency, the South African Revenue Service; and by generally gutting law enforcement. He must be so disappointed that appointing a Chief Justice who was by no means the best qualified did not buy him the Constitutional Court. His moves created the environment for corruption to flourish and hence for service delivery to collapse.
Making rights accessible
But we should not get too stuck on personalities. During the Zuma presidency, much of the current cabinet was in place. President Cyril Ramaphosa is not free of the tarnish of that time and also has the blood of the Marikana massacre on his hands.
If we are to become a society of laws not of power, we need to understand why the system is broken. It is a complex problem, so I will look at one angle – access to rights through the courts, particularly for the poor, who stand no chance unless an NGO or public interest lawyer takes up their plight.
In our original post-1994 jurisprudence, the Constitutional Court was the only place to litigate constitutional questions; that has subsequently changed to allowing lower courts to adjudicate constitutional rights. We need to go further than that in making rights accessible and recognise that the high court is too high a bar and effectively nullifies the intent of the social justice basis of our constitutional order.
We made labour law more accessible by having separate labour courts: why can’t we do that for rights violations, too? A human rights court that could assist the complainant with their case, much as the Small Claims Courts does, could make a big difference to access to rights. The poor have a right to state-funded legal defence in criminal trials but they do not have a right to state-paid civil rights lawyers – why should there not be state-funded legal aid in rights cases that are complex enough for a high court or apex court hearing?
Finally, we could have a rights ombud office where cases that can be handled by simple thrashing-through of disagreements could end.
In making such reforms, we should not forget the old maxim that justice delayed is justice denied. Lighter-weight courts and an ombud office would make it much easier to hear rights-specific cases expeditiously.
All I can say that is positive about where we are now is that the Concourt has strongly asserted equality before the law as regards Zuma. I only wish that was true for everyone else, particularly the poor and the vulnerable.