Rebuilding legality after Zuma

John Kane-Berman on the major task facing the ANC President's successor

Rebuilding legality will be major task for Jacob Zuma's successor

Irrespective of how long Jacob Zuma may still occupy the Presidency, South Africa needs to think now of how to meet the challenges it will face in the post-Zuma era. The most obvious of these is to move the country back on to a trajectory of economic growth.

No less formidable will be the restoration of legality. Unlike the old South Africa, built as it was upon parliamentary sovereignty, the post-apartheid Rechtsstaat was to be one where the rule of law would be supreme, power would be limited, and the courts would have the final say. The assault upon the Rechtsstaat, and the maiming of these ideals, are Mr Zuma's defining legacy. It goes beyond his destruction of the Scorpions and his undermining of the National Prosecuting Authority to avoid having to stand in the dock.

With its high crime rates, reckless driving, strike violence, and destructive protest, South Africa has long been a lawless country. Under Mr Zuma's rule, the state itself has become increasingly lawless. The most dramatic recent example is the decision (itself probably unlawfully taken) to withdraw from the International Criminal Court following brazen defiance of our own courts in aiding and abetting the escape of Omar al-Bashir last year. But Mr Zuma's actions to shield himself, and his government's actions to shield Mr al-Bashir, from the law are but the tip of a large iceberg.

It is no longer unusual for ministers or even junior officials to flout court orders. Judges periodically complain about this, but in practice there is little they can do to stop it. Sometimes when they try they are insulted or their judgements are taken on endless, wasteful, and often fruitless appeals.

Nor is it unusual for policemen or other officials to be appointed or dismissed contrary to the law. Torture in police cells appears to be routine. A criminal record is no bar to high office. "Irregular" expenditure is pervasive at all levels of government and right across the country. Moreover, as officials who include both the public protector and the auditor general have complained, the guilty parties in practice enjoy immunity.

Lawlessness ranges from the outright criminal to the flouting of procedures. Its perpetrators inhabit all levels of government. They run from directors general to immigration officials, from municipal managers to petty bureaucrats and regulators who throw their weight around. The victims include prisoners unlawfully denied medical treatment or unlawfully denied parole, refugees forced to pay bribes, hawkers whose goods are unlawfully confiscated, and poor people unlawfully evicted from shacks which are then unlawfully demolished. They also include mining companies whose licence applications are unlawfully denied and suppliers who do not get paid for their services. Mining companies are among those who can go to court, many communities erupt in anger, but most of the victims of the lawless state have little choice but to suffer in silence.   

Lawlessness predates Mr Zuma's elevation to power in 2009, but it has intensified during his rule as more and more people and institutions follow his example and the example of a party which condones his behaviour. The current revolt against him and his various associates by sections of the African National Congress (ANC) is a start to getting South Africa back on to the straight and narrow of legality. But only a start. If Mr Zuma's legacy is not to endure beyond him, a culture and practice of legality will have to be inculcated right across organs of state and agencies of government. This will probably be as difficult as combating crime in general. The two go hand-in-hand, of course.

Mr Zuma's successor will require not only the political skill, but also the courage, and the stamina, to arrest and then reverse the state's slide into lawlessness. Three questions arise: does the ANC want, can it produce, and will it support, such a leader?  

* John Kane-Berman is a policy fellow at the Institute of Race Relations (IRR), a think-tank promoting political and economic freedom.