In the midst of the current crisis of crime and violence it appears almost trite to state that there is a need for greater respect for justice and the law in South Africa. Recent studies of hijacking networks and organised criminal gangs highlight how attitudes of ambivalence towards the law on the part of many South Africans contribute to an environment in which crime flourishes.
In many localities known criminals are widely tolerated, or even admired – notably if they are perceived as preying on people living elsewhere. This forms part of a culture which also condones other illegal practises, spanning everything from the purchase of stolen goods and illegal reconnections to corruption and white-collar crime.
Greater respect for the law is clearly an important element of any attempt to build a South Africa which is essentially law abiding, and where daily life is not threatened by crime, and violence, in the way that it is today.
Respect for the law is likely to be particularly inadequate unless there is a reasonable element of deterrence. Such deterrence arises from the probability of punishment if one commits crime. The state must create respect for the law in part by demonstrating that it has the will and the capacity to enforce the law against those who infringe it. Current efforts towards strengthening the criminal justice system, and particularly the process of crime investigation and prosecution, therefore have a valuable role to play.
Yet in a human rights based democracy, respect for the law cannot be built on the authority of the state, or deterrence, alone. Because the state is constrained by standards of due process, it cannot resort to the type of measures which evoke the levels of fear that enable authoritarian governments to ensure adherence to the law.
As much as it depends on authority, respect for the law therefore also depends on the legitimacy of government and the social system. A crucial element of this is credibility of the criminal justice institutions and of the law itself. On these latter issues there is cause for serious concern in South Africa at the moment.
Over the past few years public opinion polls and surveys have consistently indicated that the South African Police Service is regarded as amongst the most corrupt government departments in South Africa. More recently concerns about corruption in the police have taken on a more disturbing form with allegations, amongst others, that the SAPS National Commissioner, Jackie Selebi, has used his position of authority to protect a friend of his in the criminal underworld from the operation of the law.
The episode has now veered into high legal and political farce. The head of the National Prosecuting Authority, Vusi Pikoli, has been suspended. While the official reason given for Pikoli's suspension was the breakdown of the relationship between him and the Minister of Justice, there are few who do not believe that the real reason for the suspension is the fact that the NPA had obtained a warrant for Selebi's arrest – effectively that the suspension is intended to shield the National Commissioner from being brought to account before the law.
Pikoli is now the focus of a Commission of Inquiry which is supposedly intended to address the issue of his suitability for the post of National Director of Public Prosecutions. This has all taken place in the absence of any indication that the National Commissioner is being brought to account, or that the broader questions of police conduct in their relationships with people within the criminal fraternity, are being addressed.
While it is not clear why there should be such a great concern to protect the National Commissioner, it is reasonable to infer that this has to do with damage control relative to the current leadership contest within the ANC and that Pikoli has been suspended for seeking to arrest and prosecute Selebi without President Mbeki's approval. The implication is that that the National Director of Public Prosecutions must act at the bidding of the President, or suffer the consequences.
But it is not only the National Director of Public Prosecutions who is facing the heat, apparently as a consequence of his efforts to uphold the principle of equality before the law entrenched in the Constitution.
In democratic countries control over investigative powers is generally diversified through being located in a number of different policing agencies. Until the creation of the Scorpions in 1999, however, South Africa had a single policing agency – part of the legacy of our colonial and authoritarian legacy, as well as a consequence of the insecurity of the ANC about the potential for instability and provincial secession during the critical years of South Africa's transition in the mid-1990s.
In South Africa the very fact that the National Commissioner of the South African Police Service could be subjected to investigative scrutiny is quite remarkable, considering the enormous power which he exercises. Were it not for the existence of the Scorpions, this would not be possible, and the National Commissioner, and anyone that he might want to protect, would be above all legal scrutiny.
Notwithstanding the fact that the Khampepe Commission last year concluded that the Scorpions should remain housed in the National Prosecuting Authority, as a separate entity from the SAPS, the ANC's December conference in Polokwane will be voting on a resolution calling for the Scorpions to become "a special unit to deal with organised crime" within the SAPS.
Notwithstanding the deep level of conflict with the ANC, the one issue on which there appears to be a high level of agreement within the organisation is the need to 'relocate' the Scorpions. This is motivated for on the false premise that Section 199 of the Constitution provides a 'constitutional imperative' for this to be done.
Notwithstanding the vast range of challenges facing South Africa, the only 'constitutional imperative' referred to in the Draft Resolutions for the Polokwane conference, is being invoked, whether intentionally or not, in order to directly undermine the principle of equality before the law contained in Section 9(1) of the Constitution by concentrating all investigative power under the SAPS National Commissioner.
A selective and tendentious reading of the Constitution is therefore being used within the ANC to destroy the investigative architecture which makes equality before the law – one of the key principles entrenched in the Bill of Rights – a possibility in South Africa. This apparently is the consequence of the fact that application of this principle has imposed too high a burden on various prominent members of the ANC who have allowed themselves to become legally compromised.
The combination of high-level political interference in the exercise of prosecutorial discretion, and the attempts to cripple the investigative agency whose existence makes our commitment to the principle of equality before the law realisable, is potentially deeply destructive to efforts to build respect for the law, and the rule of law, in South Africa.
These developments highlight the fact that the lengths which the different factions and elements within the ANC and tripartite alliance are willing to go to in pursuing their political conflicts, and upholding their political and personal interests, have increasingly themselves become a principle threat to the rule of law, and the potential for building respect for the law, in South Africa.
David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
Originally published in Sunday Times, 11 November 2007.