Two cheers for the rule of law… but we are missing a third

“That Was the Week That Was”, the title of a 1960s British satirical revue, sprang vividly back to life here and abroad in the past few days.

Last Wednesday, Prince Andrew – son of one monarch and brother of another – was arrested in Sandringham for “misconduct in public office” and detained for 11 hours at a Norfolk police station.

In Johannesburg, Bellarmine Chatunga Mugabe, scion of Zimbabwe’s former ruling dynasty, was arrested on a charge of attempted murder. On the same day, in far-off Seoul, South Korea’s once all-powerful president, Yoon Suk Yeol, was convicted of leading an insurrection by imposing martial law and sentenced to life imprisonment.

Then, on Friday, the US Supreme Court ruled 6-3 that tariffs imposed by presidential executive order were unlawful. Two of the justices in the majority had been appointed by Donald Trump.

Arguably, for South Africa and the wider world, the Supreme Court decision is the most consequential of these events. Leave aside Trump’s furious – almost unhinged – reaction to the ruling. (By comparison, Jacob Zuma’s restrained acceptance of the Constitutional Court’s Nkandla judgment against him now appears nearly a civics lesson.)

Trump’s policy response – imposing a 15% universal tariff – paradoxically rewards a lethargic and often American-antagonistic South Africa, which has yet to secure a single new trade agreement with the US or, indeed, any other country. The new rate is half the original 30% “Liberation Day” tariff previously levied on many South African exports. Yet it penalises countries such as the United Kingdom, which had negotiated a deal with Washington based on a 10% baseline tariff under the banner of the “special relationship”.

Ironically, that agreement was concluded only months ago by the now disgraced and arrested former UK ambassador, Peter Mandelson. For the moment, Britain and others are worse off at 15% – in precisely the same position as South Africa, a country that has taken nearly a year even to appoint an ambassador in Washington.

Neither lethargy nor schadenfreude amounts to a trade strategy. Still, some mandarins in Pretoria may quietly bank the Supreme Court ruling as a temporary reprieve.

What links the arrests of Andrew Mountbatten-Windsor and Bellarmine Mugabe, the sentencing of Yoon, and the US court’s pushback against its constitutionally errant president is something larger: the reassertion of the rule of law.

As we know from our own region, democratic procedures – even contested elections – can produce profoundly undemocratic outcomes. Robert Mugabe perfected that craft over decades of lethal misrule.

In 2003, Fareed Zakaria, now a CNN commentator, published The Future of Freedom. He argued that democracy requires more than elections; it depends on “a bundle of freedoms” that safeguard both democratic means and ends. Chief among these is the impartial application of the rule of law – against anyone who encroaches on democratic space, whether royal, rich or politically powerful.

A decade later, in 2013, when South Africa’s rule of law was buckling under the weight of state capture – with the National Prosecuting Authority (NPA) among the early casualties – free-market advocate Leon Louw offered an unexpected intervention. Rather than foregrounding property rights or business-friendly reforms, Louw argued in Business Day (26 June 2013) that “high rule-of-law scores are the biggest contributor to national prosperity”. Countries may err in other policies, he wrote, but the supremacy of the constitutional order over political whim is non-negotiable.

Two cheers, then, for last week’s reaffirmations of that principle.

But why not three?

In our own backyard, the arrest and continued detention of young Mugabe marks progress from the legal contortions that once shielded his mother, Grace Mugabe. Facing assault charges in 2017 – after allegedly beating a young woman with an electric cord – she was retroactively granted diplomatic immunity by the Department of International Relations and Cooperation.

In 2018, the High Court ruled that immunity unlawful and ordered it revoked. She is now liable to arrest here – and unable to visit her son as he confronts more serious charges than she did.

Yet while the brazen bending of the law to protect the powerful appears less overt than a decade ago, serious landmines remain.

Of the roughly 97 ANC figures named or implicated in the Zondo Commission report, how many have been arrested? Fewer than 10, by most estimates. Some still serve in Cabinet. Not one has been convicted and imprisoned. And the grand architect of the era, Jacob Zuma, has managed to stretch out his pre-Zondo arms deal prosecution for more than two decades.

A functioning rule of law requires two pillars: a competent prosecuting authority and experienced, independent judges to adjudicate complex cases.

South Africa struggles on both fronts.

The post-Zondo NPA has too often been marked by delay, missteps and failed prosecutions. Judicial appointments – in which the now criminally convicted Julius Malema plays an outsized role – fall under the highly politicised Judicial Service Commission (JSC).

Recent events illustrate the malaise: an unprecedented impeachment of one judge (briefly thereafter an MP); two more currently facing impeachment; another under bribery allegations; one convicted of drunk driving; and yet another cleared of sexual-harassment allegations on “cultural” grounds. It is a dispiriting and expanding roll call.

As Barney Mthombothi wrote over the weekend: “The JSC was created to take politics out of the appointment of judges, but the exact opposite has happened. It’s dominated by politicians who have neither knowledge nor interest in the law, but simply want to pursue their own nefarious agendas.”

I was among the constitutional negotiators in 1993 who helped establish the JSC. In the decades since, it has drifted far from its founding purpose.

Add JSC reform, NPA revitalisation and the effective prosecution of corrupt politicians to the government’s stated priority of halting the criminalisation of the state. And that’s after sweeping the muck out of the Augean police stables emerging from the Madlanga Commission.

Only then will we be entitled to offer three cheers for the rule of law.