Fighting the Rule of Convenience

by Iswamo Kapalu

During the swearing in of Johannesburg councillors on Monday, councillors-elect from the Economic Freedom Fighters (EFF) objected to the swearing in of Dan Bovu from the African National Congress (ANC).

The basis for this objection was that Dan Bovu had an open case against him on the charge of bribery and corruption. This charge was laid by the EFF themselves who alleged that its councillors were offered R500 000 to vote with the ANC in the hung Johannesburg council.

While grandstanding appears to have permeated South African political discourse and is now in the marrow of South African politics, the particular objection is symptomatic of another problem in local politics – that of an inconsistent appreciation for the Rule of Law.

This problem when one looks to broader society’s interactions with the justice system is a case of the elected mirroring the electorate. This selective appreciation can be seen when opinions and versions supported only by one’s personal feelings usurp the courts as the ultimate abitur of innocence and guilt.

The honour and respect due to principles of “due process” and the “presumption of innocence”, cornerstones of liberal-democratic society, are quickly sacrificed when they produce results contrary to popular opinion.

The Rule of Law is celebrated when the Constitutional Court upholds the office of the Public Protector, but is viewed as an inconvenience when due process lengthens the trial of someone who has been accepted as guilty by public opinion.

Those who are yet to spend a day in court for crimes they have allegedly committed, or those who after a thorough examination of evidence by a competent court, stand with the presumption of their innocence undisturbed are as guilty to the public as any man in a cell in Pollsmoor prison.

While this selective appreciation might seem harmless, its effects are insidiously destructive to the fabric of South African society. It reflects a selective respect for the Constitution in which these principles are enshrined and protected.

The importance of respect for the whole of the Constitution all the time cannot be understated. In a country where lives, realities and identity are as diverse as this, constitutionalism is at times all that binds us. A common appreciation for all the principles of the Constitution is therefore paramount to any hope we have of building a stable and thriving democracy.

This appreciation must be especially pronounced in those who aspire to leadership. Respect and appreciation for the Constitution cannot be subject to politics, instead all things – whether they be political views or personal motives – must be subject to Constitution. Politics cannot be allowed to walk in step with the Rule of Law only when the Rule of Law walks in step with politics.

To do this will be first to expose ourselves to the type of political climate that sees, as we saw with the Public Protector, a respect for the Rule of Law that is only as deep as the point it comes in conflict with the party line. Secondly, it hands power from the Constitution with its democratic principles over to the fears, thoughts and beliefs of the public. To do this is to take ourselves backwards.

While the functioning of the law and justice system are not perfect, and the bar they set is sometimes so high as to make the factually guilty legally innocent, they are better than anything else we have. As such, it of critical importance that, as a part of our commitment to constitutional and democratic culture, they must be protected and respected irrespective of what we feel and what’s convenient.

Mr Iswamo Kapalu
LL.B. (Wits)

Iswamo Kapalu is a young South African of Zambian origin. He holds an LLB from the University of the Witwatersrand and currently works as a researcher, writer and social justice advocate at the Jesuit Institute.
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