29 November 2021
We live in a gangster state, not quite fully realised but approaching it.
When it comes to those things that matter, there is no rule of law, there is only rule by law. For the laws with which we stitch together the fabric of our lives no longer emanate from Parliament's democratic structures. They are revealed to us through grace. After convening his commanders and divining with experts, our Patriarch informs his child-subjects at late night Family Meetings what is expected of us the coming morning.
For the traditional conception of law, a defining quality of any legal system is the relative stability of particular laws. Laws can change, but those subject to their coercive power should know, with at least some degree of confidence, what their content will be for the foreseeable future.
But as the past week illustrates, laws in the gangster state are inherently uncertain. Subject to the whims and anxieties of local and foreign elites, South Africa forms part of an international cartel in which child-subjects hope and pray that their lives tomorrow will not be radically other than they are today.
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One reason that certainty matters is often remarked on by lawyers. Having stable laws is essential for people to plan their lives. This is true and important—ask any business owner, or parent with school-going children, or person planning a trip overseas.
But stability is necessary for another reason. It allows critics to challenge laws. For it takes time to evaluate their content, to organise campaigns or protests, or to launch legal proceedings—and longer still for these strategies to have any effect. But if the laws will just be amended tomorrow, or next week, or next. . . is there any point in even trying?
Instability is disempowering, and thus it also entrenches existing power. Through it, those meant to serve are unmoored not only from judicial review but from all public accountability. No longer held responsible for what they do, their power assumes a totalising form. Put otherwise, whereas stability is necessary to secure lives of coherence and meaning, instability functions to secure the power of gangsters.
When I hear them solemnly speak in the now nearly empty idiom of our Constitution, using terms like rule of law, dignity, democracy, accountability, and transparency, I am reminded of two 18th and 19th century legal theorists, Blackstone and Bentham. Each tells a story about Caligula, the mad Roman tyrant. Pressured by the plebeians to publish his decrees for them to read, Caligula "wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people."
Ultimately, this is the function of the Family Meeting. Like those of old, our Patriarch issues his decrees from on high. He takes no questions. And through this he ever more effectually beguiles the people. When he invites you to challenge laws you think unconstitutional, do not be fooled. It is a spectacle—a device that obscures the real, fluctuating and unpredictable operation of his power.
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Despite efforts to obscure, all this could be discerned a year ago. It is an essential feature of the gangster state. That opposition parties, media, and pretend constitutionalists, choose to ignore it, instead fighting phantom threats and powerless outsiders, speaks to their fealty to the new regime of power—to their embedded self-interest in its continued operation.
But another essential feature of the gangster state is revealing itself. It was always there, but it is only now being articulated openly by the enforcers of this new regime. They do not have formal power, but they work, often unwittingly, to obscure its existence through their shaping of public opinion. Of course, I am referring to the media.
When news of the new variant broke, revealed to us by the gangster state's clergy, its experts, the reaction of these opinion-formers was immediate. In their rush, though, they revealed something perhaps meant to remain hidden, given the extent to which their authority is dependent on public displays of care and concern for society's most vulnerable.
But their masks have been slipping for a while. And less than 24 hours after news about the new variant broke, they fell right off—revealing not selfishness, but rather a criminal, moralising self-righteousness.
One enforcer of the gangster state openly called for the systematic mass impoverishment of South Africa's black majority: "The time for the carrot approach is over. . . . Time for government and private sector to get serious - not vaccinated? - no access to malls and shops, no Sassa grant, etc etc." Another enforcer mused: "We're already at breaking point - booze bans and hard lockdowns are no longer an option. Maybe restrictions on the unvaccinated is our last option." A third such enforcer, after last night's Family Meeting: "Uganda has made it compulsory for its citizens to be vaccinated if they want to visit state clinics or receive medicine." If only our own Patriarch were so "creative and bold", he writes wistfully.
This is where their logic leads: to a public-private partnership formed through a constellation of fluctuating and unpredictable powers, formal and informal, that imposes itself through violence, which is to say, through threats of starvation and ghettoisation and denial of access to healthcare, "etc etc".
Their logic of lives and livelihoods, in other words, leads not to "the common good", as the well-intentioned but naïve believe, but rather to the fully realised gangster state.
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Before Covid, public life was structured by the constitutional ideal of democratic plurality. The gangster state, constituted by a fluctuating legalised violence, exists as its opposite.
This is why three progressive commentators—all white men—advocate policies that will starve and exclude from public life millions of black South Africans. They can do it openly, and without genuine censure, because the legal, political and cultural institutions that regulate our lives have undergone this transformation.
This systematic change in how our elites understand and respond to events, both underlies and has acted as justification for their "Forever War" on the virus. Like every narcissist, though, they are never satisfied. They always lust after more power. For this reason, their war on the virus is pivoting, turning inwards. Exploiting the spectre of an ever-mutating threat, gangsters and goons are now openly waging war on the people.
Matthew Kruger, Research Fellow, Helen Suzman Foundation.
The views of the Research Fellows do not necessarily represent those of the HSF but are published under our auspices in order to enhance and broaden public debate, which is part of the mandate of the HSF.