Institutions and the rule of law are the essential elements that protect individual South Africans from the excesses and abuses of state power. The recent fiasco where the Public Protector recommended changes to the Constitution is an example of institutions gone awry.
Constitutionalism as a branch of jurisprudence did not develop to foster effective government, but explicitly to restrain government interference in the personal and economic lives of ordinary people. The Public Protector’s recommendation does the opposite: it proposed to alter its establishing statute – the Constitution – to change the very nature of our central bank for seemingly political reasons. The markets reacted predictably and, today, South Africans are a little poorer than they were yesterday.
The business of our institutions should not be to make life harder for anyone – except government, that is.
Institutions are divorced from the politics of the day because they are meant to be consistent and as immune as possible from political interference. In a country with rich constitutionalism and strong institutions like the United States of America, the character of the country does not change when political leadership does. Donald Trump’s influence on America’s status as a bastion of freedom and democracy will be negligible. He might fiddle with the composition and policy of Cabinet, but the Supreme Court and the sturdy devolution of power to states ensure that the reach of the President does not extend too far.
In other countries, such as ours, the political leadership of the day has far greater influence and institutions are secondary considerations. We already refer to the terms of our post-Apartheid presidents as “eras” – the Mandela-era, the Mbeki-era, and the Zuma-era – each with their own style that had a profound impact on South Africa’s world image. Before 1994, no matter who was president, we simply had “the Apartheid-era”, because the institution of Apartheid was so strong (in a bad way!).
Our political leadership does not have to reach far to impact the lives of ordinary South Africans negatively. That a political appointment practically brought South Africa’s economy to its knees is indicative enough that this situation is not right.
South Africa’s institutions may appear strong on paper, yet it is evident that the executive branch of government can act with a free hand. For instance, the Department of Mineral Resources’ recently-published Mining Charter wiped more than R50 billion off the mining industry’s share value. Our institutions seem powerless to stop government from enacting such destructive policy even when the Charter’s history is questionable when it comes to public participation and impact assessments.
Institutions must be concerned, first and foremost, with the government. There is no doubt that private firms and individuals, too, can be corrupt, but the consequence of private sector corruption, by its nature, is limited. Government corruption and overreach, however, can potentially destroy economic growth and the livelihoods of millions. Private corruption is dealt with by market forces, and, failing that, the courts and the criminal justice system. Government corruption is dealt with politically.
Our institutions need to make sure government does only that which it is designed to do, and does it well. Most of all, our institutions must never enable the growth of government for political reasons – something our superior courts have been guilty of on occasion in recent years.
When institutions lose their character as a restraining force and become an enabling force, they cease to be the custodians of constitutional democracy and the rule of law. Instead, they become part of a very corruptible political process. When this happens, tyranny is inevitable.
Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students For Liberty in Southern Africa. Find out more at www.martinvanstaden.com
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