On constitutions, commissions and self-conscious nerds

04.08.2019 - Article

For an outsider who is lucky enough to live and work in South Africa, it is fascinating to see how the rule of law has taken centre stage in so many recent political issues – without this always being explicit, writes Ambassador Martin Schäfer for News24.com.

Ambassador Schäfer's column
Ambassador Schäfer's column© News24.com (Screenshot)

Lawyers, academics and diplomats can sometimes come across as judicial nerds. I admit it: I am part of that breed: A lawyer by training, a diplomat by trade, I don't get bored when bogged down with technical legalese. I realise not everyone shares my peculiar hobby, although the number of “judicial nerds” seems particularly high here in South Africa.

The good thing is: You don't actually have to dig deep to find the essence of our democracies' most important legal documents. Take South Africa's Constitution.

The text is rightfully admired across the world – for its thoroughness and progressiveness, its breadth and for the way it was drafted by astute individuals like Kader Asmal and Albie Sachs. It is worth highlighting that the Chapter 9 institutions of the South African Constitution are possibly the most innovative and progressive constitutional invention of the last three decades. And still, as we see today, despite the best intentions of the mothers and fathers of the Constitution, these can become embroiled in all but pretty political battles.

I want to focus on one key element of South Africa's exemplary Constitution. It is easy to find: You only have to open the first chapter, go to the first article and spot letter “c”: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: (…) Supremacy of the constitution and the rule of law.”

There it is, right in the beginning: The rule of law.

Interestingly enough, in the German Grundgesetz, our constitution, you have to flick forward as far as to Article 20, paragraph 3 to find a definition of this crucial principle.

And yet, the rule of law is the main pillar that unites the values our two strong constitutional democracies.

Both our countries know what dangers lie in the rule of law being questioned, let alone violated. No need to explain to a German how the law was being trampled on by rising fascism and the Nazis during the first half of the last century. No need to explain what disastrous consequences arose from that. Millions lost their lives through the Shoah, through war and persecution. No need, either, to explain to a South African what equality before the law means and why its application must be unwavering.

For an outsider who is lucky enough to live and work in South Africa, it is fascinating to see how the rule of law has taken centre stage in so many recent political issues – without this always being explicit.

The Oxford English Dictionary defines the rule of law as: “… the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

Take the Zondo commission. The hearings are a showcase of exactly this: how EVERYONE – including those in highest office – is subject to the same legal processes.

And still, the commission is truly unique. I am still scratching my head to find an equivalent for these extraordinary hearings. To have a former president being questioned – in detail, in person, on live TV! I'm not sure we have ever witnessed that anywhere else in the world.

It's certainly a prime example of how the rule of law is being applied in a modern-day democracy. True, the revelations that are coming to light during these hearings might be disturbing – shocking even. But the very fact that they ARE coming to light is proof that the rule of law works and is in full swing in South Africa.

Nobody is above the law. No politician, big or small. No member of government. Nobody. No matter how wealthy, witty or well-connected. That's the core of the rule of law and also the constitutional and political benchmark for the success of being able to get to the bottom of this and other excruciating exercises. To hang out the dirty laundry in the open is good and necessary, but it is not enough.

No one is above the law. This also holds for the business community, of course. That also holds for every single company or business representative active here in South Africa, whether local or international, South African or German.

No one is above the law. And those who make mistakes or commit crimes, those who cheat and misuse trust must be held accountable by the competent judicial authorities. Without fear or favor.

We stand side by side with South Africa on this path.

And that's not because “the rule of law” is such a pretty term. No. It's because we know that our democracies can only flourish when there is no corruption and no abuse of the public purse. The rule of law is securing our nations' political stability, economic development and social progress. It's the guarantor that people's rights, security and dignity are being protected. It's nothing less than the backbone of our democracies.

Last, but not least, trust in the rule of law is, I believe, the most important pre-condition for South Africa's strive to attract more domestic and foreign investment being successful – to spur growth and employment and to fight injustice and poverty.

In my view, reaffirming the rule of law – first and foremost in the criminal justice system – is the strongest possible driver of trust and confidence in the new South Africa that the president, government and Parliament have vowed to build.

That's why every little step towards the strengthening of the rule of law should be celebrated and cherished, and not only by judicial nerds like me.

- Martin Schäfer is German ambassador to South Africa.

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