Famed 19th-century British constitutional scholar AV Dicey is credited with popularising the concept “the rule of law”. Among its core tenets is that no person is above the law or beyond its reach. Subsequent scholarly warnings that the rule of law is an “unruly horse” have received some recent, alarming updates here and beyond these shores.
If the US and its settled constitutional order was nearly unhorsed because of the needs and demands of one man in January 2021 — then president Donald J Trump — a raft of hands were lifted to rein him in. And to reassert the supremacy of the law itself.
Just as crucial was the response of his vice-president, Mike Pence, on January 6, the day the putsch was launched against the US Capitol by Trump supporters after being told by their hero “to fight like hell”.
Trump and his “legal advisers”, now facing multiple criminal charges in four different US jurisdictions, pressured the hitherto loyal Pence. They urged the “veep” — who was presiding in Congress on that fateful day to formally certify Joe Biden as the legitimate winner of the 2020 election — to throw out a raft of electoral votes and thus award to Trump an election he had demonstrably lost.
Pence declined. He wrote in his memoir, So Help Me God, that the American Revolution had been fought to rid the country of a king, noting that “the last thing the framers of the constitution would have intended would be to confer unchecked authority on one individual”.
The charges against “the King” have sucked all the oxygen out of the media space and rocket-fuelled the flames of resentment and conspiracy on which he and his supporters thrive, and that now dominates the Republican Party orbit. But less attention has been paid to how the US justice system has dealt with the conspirators and inciters who attempted to overthrow the democratic order in Washington more than two years ago.
National Public Radio reported in March that more than 1,000 people have been criminally charged over the riots that engulfed the US Capitol more than two years ago. Thus far 445 have been sentenced, and 58 of the defendants have been imprisoned with terms ranging between seven days and 10 years.
The report describes the investigation into the insurrection as “the widest ranging in the history of the justice department”. It is certainly one of the most expensive, at an estimated cost to date of $2.6bn.
There might be many defects in American democracy, but a weak justice system is not on the bill of indictment, even though Trump and the Make America Great Again movement believe it to be weaponised against them. Biden’s son, Hunter, has seen his so-called sweetheart plea deal for tax charges evaporate and he is likely to face a full-blown trial. This suggests neither the most powerful nor their family members are beyond the reach of the law.
In July 2021, seven months after the events of January 6 2021 upended American politics and stress tested the supremacy of law there, SA faced its own assault on its more recent and far more fragile democratic constitutional order.
The “Zuma riots”, sparked by the imprisonment of Jacob Zuma for contempt of court, comprised more than 8,000 incidents of rioting and looting and other larcenies engulfing KwaZulu-Natal and Gauteng. More than 350 people were killed and about R50bn of the economy was wiped out.
President Cyril Ramaphosa was quite explicit on the threat and the target. He called the events “nothing less than a deliberate, co-ordinated and well-planned attack on our democracy … intended to cripple the economy … or even dislodge the democratic state”.
These tough words were accompanied by an explicit promise to go after the instigators and ringleaders of the insurrection: “We are going after them; we have identified a good number of them.” Fighting words as ever from the commander in chief. But alas, not much action and even less follow-up. According to current reports, “2,435 cases are still awaiting prosecution”.
And these are the relative small fries, the individual looter or opportunistic shoplifter. What of the ringleaders — like the Trump circle in the US now under multiple indictments? There is no sign at all of any prosecutorial activity in SA regarding the most politically significant masterminds and co-ordinators of the worst acts of violence seen in this country since 1994.
Zuma’s daughter, for example, posted celebratory tweets of the buildings being burnt during the carnage. As a digital expert testified on the conduct of Dudu Zuma-Sambudla, “she would engage in the most celebratory posts of burning buildings and have a tweet below it is saying: ‘Amandla, we see you.’ No charges preferred against her or others in the inner circle.
Just to prove that family form continues, last week’s decision to release Zuma from serving more than one hour of his original sentence caused his family to remind us that had the rule book been properly applied and the sentence imposed by the highest court implemented, mayhem would have resulted. According to a report on TimesLIVE, Zuma’s brother Khanya advised that had Zuma been sent back to jail “SA would have been subject to another July 2021 period of unrest”.
Celebrants of the decision to waive the rules for Zuma — including, among the more unlikely, former public protector Thuli Madonsela — would do well to study the response on the rule of law by one of the few politicians who both understands its import and applies its prescripts.
Cape Town mayor Geordin Hill-Lewis, who declined to bend to the anarchy and armed insurrection offered by striking taxi drivers two weeks ago in his city, offered a timely riposte. He wrote: “I want to live in a country where certain basic values are no longer in dispute — the rule of law being right at the top of that list.”
As he noted, applying the law against flagrant breachers of it on the roads of Cape Town “is a surprisingly controversial thing to do, even in a country with some of the worst road death statistics in the world, and where taxi conduct on the road is notoriously dangerous”. Yet, as he notes, “the rule of law is hanging by a thread”. No exaggeration. The grotesque underprosecution and lack of convictions for the Durban riots two years afterward is one example.
More recently we had another: in the teeth of the Cape Town taxi carnage at least two national cabinet ministers, tasked with the transport and policing mandates, chose to side with the law breakers in the dispute, not the law implementers.
The old image of justice being blind in her equal reach and standing tall has an SA variant. Here she is one-eyed and lies prostrate.