A condition never fully established[i]

Before democracy, there was no legitimate law in South Africa. Resistance to apartheid was often in defiance of the law, always with the aim to change the law, to undermine it and render it unworkable, and ultimately to replace it with law for life and people: a revolution. Even if law's ambiguities were useful sites of struggle, the statutes and courts were the sophisticates of murder; the codification of a people's humiliation.

The call was made to make the country ungovernable. As Chief Justice Mohamed wrote in 1996, "The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation." But everyone knew, or so they thought, that this was just a temporary tactic. It could be turned off, and order restored, at any time.

On the best days of our history it was clear that the rule of law was not the enemy but the goal, not something to overthrow, but something never tasted; the end for which the entire struggle was being waged.

On 9 May 1994, after his election as President by the first sitting of the democratic Parliament, Nelson Mandela said the following:

We have fought for a democratic constitution since the 1880s. Ours has been a quest for a constitution freely adopted by the people of South Africa, reflecting their wishes and their aspirations. The struggle for democracy has never been a matter pursued by one race, class, religious community or gender among South Africans. In honouring those who fought to see this day arrive, we honour the best sons and daughters of all our people. We can count amongst them Africans, Coloureds, Whites, Indians, Muslims, Christians, Hindus, Jews - all of them united by a common vision of a better life for the people of this country.

It was that vision that inspired us in 1923 when we adopted the first ever Bill of Rights in this country. That same vision spurred us to put forward the African Claims in 1946. It is also the founding principle of the Freedom Charter we adopted as policy in 1955, which in its very first lines, places before South Africa an inclusive basis for citizenship.

In the 1980s the African National Congress was still setting the pace, being the first major political formation in South Africa to commit itself firmly to a Bill of Rights, which we published in November 1990. These milestones give concrete expression to what South Africa can become. They speak of a constitutional, democratic, political order in which, regardless of colour, gender, religion, political opinion or sexual orientation, the law will provide for the equal protection of all citizens.

They project a democracy in which the government, whomever that government may be, will be bound by a higher set of rules, embodied in a constitution, and will not be able to govern the country as it pleases.[ii]

The past fifteen years have shown both the promise and provisionality of the rule of law in democratic South Africa.

The promise is that law, under our Constitution, can support efforts for equality and social justice, particularly for the weakest and worst-off in our society. In 2002 the Constitutional Court ordered the government to implement a comprehensive plan to prevent mother-to-child-transmission of HIV. That judgment, preceded and followed by the courageous work of the Treatment Action Campaign, saved thousands of lives. Unemployed dependents on social grants, widowed claimants for maintenance and communities of shack-dwellers have all affirmed their rights and improved their lives in our courts. Despite the democratic government often being on the losing end, these orders are founded in the rule of law, and are therefore victories for democracy.

The rule of law is always provisional. In established democracies like the United States and Britain, it has been deeply undermined in pursuit of corporate profit and indistinct security and foreign policy objectives under the banner of the "war on terror".

From early in the life of our democracy there have been worrying signs. The multi-billion rand arms deal, concluded without proper parliamentary oversight is still disgorging its poison. Zuma may emerge the victor in the battle that has raged between him and the NPA for the better part of a decade, ever since Bulelani Ngcuka began his investigation in January 2001. Many reputations are in tatters, not least of all Zuma's, but the greatest damage has been to the rule of law and its institutions, misused and disrespected by all the warring factions. 

The contents of tapes Zuma's lawyers have now put before the NPA make clear that indeed the legal system was deliberately abused in a political conspiracy by Zuma's opponents, those close to Mbeki, and potentially the former president himself. It is for this very reason - albeit with less evidence before him - that Judge Nicholson struck Zuma's case from the roll. But at the Supreme Court of Appeal, Justice Harms held that if Zuma has acted corruptly he must be found guilty, irrespective of whether his prosecution was motivated by a political war.

To disagree with Harms is to let a man - almost certainly guilty, on the basis of the Shaik trial - walk free. When a national figure, soon the most powerful man in the country, escapes prosecution, confidence and respect for the rule of law suffer immeasurably.

But to follow Harms uncritically is to want a law impossibly removed from politics. It is to mistakenly think that law can be just when selectively applied. It asks of judges a myopic adjudication of whatever prosecutors and police present to them, but expects blindness to the rest of the criminal-justice process, over which judges should in fact serve as guardians. It is an impoverished notion of the rule of law that has nothing to say about political scores being settled in our courts.

Despite everything, Zuma must still stand trial. The ANC's submission that doing so may destabilise the country and run against the national interest is false and inflammatory. Is it a prediction of instability or a threat to destabilise? Given the levels of crime and corruption in South Africa, the national interest is in demonstrating that nobody, not even a president, is above the law. Julius Malema has asked whether prosecutors "would be proud to prosecute their own president and embarrass their own country?" It is indeed a great country, and the one Nelson Mandela spoke of in 1994, where all are equal before the law.

If evidence is available, others - possibly even Mbeki - should be charged in connection with political conspiracy and abuse of state institutions. If Zuma has such evidence, lawfully obtained, it must be produced. To withhold it, or obtain it illegally, is a criminal offence itself requiring investigation. If the NPA drop the charges against Zuma, full reasons must be given.

The rule of law's most basic principles are a separation of powers and equality before the law. The British radical and anti-imperialist Thomas Paine stated in his pamphlet Common Sense in 1776: "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." Paine participated in and supported both the American and French revolutions.

Attacks on the judiciary in South Africa have come from some in the so-called left, and some of the so-called Africanists. Both betray the best in their traditions: there is no Marxist or African pedigree for destroying democratic law. 

Marxism is not just a rejection of liberalism, but a further pursuit of the principles of democracy and liberty which liberalism proclaimed and then inhibited. Marx criticized existing law from the perspective of democratising the law. The legitimacy of law, as such, was not in issue. He therefore favoured the independence of the judiciary from the executive but not from Parliament. He did not see the rule of law as a mere hangover from bourgeois democracy but as a counter to bureaucracy and as a crucial guarantor of individual liberty.[iii]

Historian and anthropologist Max Gluckman saw the rule of law as basic to African society. "Africans always had some idea of natural justice," he wrote, "and a rule of law that bound their kings."[iv] African jurisprudence is commonly understood as a process of reconciling disturbed social relationships underpinned by a concern for how people should behave, as well as detecting right and wrong. As Gluckman wrote, this was done while maintaining the general principles of law.

Threats to the independence of our institutions of justice must be regarded as serious by everyone concerned with democracy in this country. Words can build to actions. This has already happened. Silence by those of integrity leads to acquiescence. The South African poet Keorapetse ‘Willie' Kgositile has captured this danger:

Beware, my son, words
that carry the loudnesses
of blind desire also carry
the slime of illusion
dripping like pus from the slave's battered back
e.g. they speak of black power whose eyes
will not threaten the quick whitening of their own intent
what days will you inherit?
what shadows inhabit your silences?[v]

Kgositsile left South Africa in 1961 as one of the first young ANC members instructed to do so by the leadership of the liberation movement. He was a founding member of the ANC Departments of Education and Arts and Culture.

During the Spanish Civil War, when unchecked power laid waste to the socialist experiments in Spain, Pablo Neruda wrote about how quickly the Madrid idyll he knew was destroyed. There were "clocks and trees", "a good-looking house" and "a measure of life".

And one morning all that was burning,
one morning the bonfires
leapt out of the earth
devouring human beings --
and from then on fire,
gunpowder from then on,
and from then on blood.[vi]

That is not a picture of South Africa today. Under the ANC real progress has been made in many areas, but it can be undone. How to secure against such outcomes and entrench the rule of law and the supremacy of the Constitution?

The first challenge is to the courts themselves. The judiciary and prosecuting authorities must be corruption free. This means Judge Hlophe must be impeached and the NPA must be subject to a judicial commission of inquiry. The voluntary adoption of a code of ethics by judges will increase the moral standing of the judiciary in the face of these challenges.

The courts must cultivate their own constituencies: those who will defend them and ensure them the political space to work. This will happen when the legal system positively affects people's lives and when legal representation is affordable. All LLB graduates must do a year's community service and all legal practitioners, including judges, must do pro-bono work. Legal literacy must be promoted amongst our people. As Tanzania's great Chief Justice Francis Nyalali said: "The greatest danger to the rule of law was public ignorance of rights and means to enforce those rights".[vii] Our judges have a role to play in this, which means less lecturing at Harvard and Yale, and more at Fort Hare, UCT and in town halls across the country.

Nothing less than judicial statesmanship is needed. Our judges must be visible actors on the stage and engage directly with the public.

The rest is for citizens to do. The Constitution is the product of the mass struggle of our people. The flawed product of political compromise, it is nevertheless the basis for building a decent society. Its Bill of Rights is the basis for working towards equality of education, health and safety for all.

Doron Isaacs is the director of Equal Education and a graduate of UCT law school

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[i] Peter H. Russel ‘Judicial Independence in Comparative Perspective' in Peter H. Russel & David M. O'Brien eds Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University of Virginia Press, 2001).

[ii] Nelson Mandela ‘Address to the People of Cape Town, Grand Parade, On the occasion  of his inauguration as State President', Cape Town, 9 May 1994.

[iii] Bob Fine Democracy and the Rule of Law, Liberal Ideals and Marxist Critiques (Pluto Press, 1984).

[iv] Max Gluckman (1972) p 173.

[v] Keorapetse Kgositile ‘Random Notes to My Son'.

[vi] Pablo Neruda ‘I'm Explaining a Few Things'.

[vii] Jennifer Widner Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa p. 314.