Abuse of law under the rule of law

‘Abuse of law enforcement is another arrow in the authoritarians’ quiver.  Offices may be raided under various pretexts, with NGO leaders, their staffs, and even relatives hauled in for questioning and put under unwarranted surveillance.  Prosecutors’ offices may be bent to the task as well, bringing cases under repressive NGO laws, tax laws, or even criminal libel laws.’

Diamond, Plattner and Walker, Authoritarianism Goes Global, 2016

When, back in August, Finance Minister Pravin Gordhan refused to present himself to the Hawks to give a warning statement, the resulting debate had two sides. The first was that Pravin Gordhan was not above the law and that he should have obeyed the Hawks’ request. As EFF leader Julius Malema wrote in the City Press: ‘He must be seen to respect state institutions, always humbling himself to respond to their call.’

Yes, the other side concedes, of course Minister Gordhan is not above the law. But here, the law is being abused, and thus, by not acquiescing, Minister Gordhan is thus not placing himself above the law. Constitutional-law expert, Pierre de Vos, put the argument well:

‘Where there is no evidence that the conduct being investigated constitute a criminal offence, where the facts on which the investigation is purportedly based have mostly been discredited, and where the investigating body pursues suspects without providing any legal or factual basis for what, from afar, looks suspiciously like a politically motivated witch-hunt, platitudes about the law having to take its course will not do.’

South Africa is a constitutional democracy based on the rule of law. But what is the rule of law? And what does it mean for the law to be abused in our society?

The rule of law and the Constitution
Our Constitution has the rule of law in its bones. Its very first section proclaims that South Africa is a state founded on, among other things, ‘[s]upremacy of the Constitution and the rule of law’. This section is super-entrenched: only a 75% majority of the National Assembly can change it. It is so important that it is possible that an amendment of another part of the Constitution might, paradoxically, itself be unconstitutional if it is inconsistent with section 1 (unless also passed by a 75% majority).[1]

At its most fundamental, the rule of law means that the state can only do what the law allows it to do. Put slightly differently, the state has no power except where granted by law.[2] This aspect of the rule of law is sometimes called the ‘principle of authority’.

Examples of this principle abound. A police officer cannot arrest you except in one of the two ways permitted by the Criminal Procedure Act. The Finance Minister cannot interfere with the relationship between a bank and its clients in the absence of a law permitting him to do so. And Robert McBride can only be removed as the head of the Independent Police Investigative Directorate by the National Assembly, because that is all that the IPID Act allows (at least for now).

When a public official breaches the legal basis of authority, one could argue that this is not an abuse of law, because she is not using the law at all – she is acting outside it. She is acting unlawfully and is doing something wrong, yes, but she is not abusing the law.

Means and ends
But the rule of law is more than just the principle of authority. It also governs how public officials may exercise the powers the law does grant them.

There are several examples of these procedural restrictions. Public officials may not exercise their powers in bad faith or for an improper purpose.[3] Sometimes, a fair procedure must be followed before a power is exercised.[4] Significantly, a public official may not exercise a power in an irrational way.[5]

A recent, well-known illustration of the procedural aspect of the rule of law is the Menzi Simelane case.[6] Here, President Zuma had appointed Mr Simelane as the National Director of Public Prosecutions (the post now occupied by Shaun Abrahams), a power section 179 of the Constitution explicitly grants to the President. But he had done this despite strong evidence that Mr Simelane had lied under oath. This, combined with the need for the NDPP to be honest and independent, rendered the President’s exercise of his section-179 power irrational and therefore unlawful.

Here, President Zuma had not tried to exercise a power not granted to him by law. He was clearly empowered to appoint the NDPP. But he exercised that power in a way that the rule of law does not permit: irrationally. This is thus an example of a breach of the rule of law that is an abuse of law.

Other obvious abuses of law, many of which are contained in the epigraph, breach the procedural aspect of the rule of law. An arrest that is in bad faith or for an improper purpose (to harass, to punish or to settle a political score) does this. It is the same with a bad-faith prosecution. And the selective application of a law for an improper purpose (the harsher application of, say, a tax law to an NGO that is critical of government, for example) is an abuse of law and contravenes the rule of law.

Constitutional supremacy
There is a type of abuse of law that the rule of law does not prevent: wicked laws. When an apartheid police officer arrested someone for violating pass laws, he wasn’t acting outside his powers. Apartheid law permitted this. He was also implementing the law in good faith, at least in the sense that it was for a purpose the law was enacted to further – white supremacy. This is why rule-of-law challenges under apartheid were often stillborn.

And this is why the framers of our post-apartheid settlement placed constitutional supremacy at the centre of the frame – to prevent the abuse of law embodied in an evil law. No matter how much a future Parliament might want to resurrect unfair racial discrimination, or create a permanent state of emergency or a security state, it cannot (unless it amends or abolishes the Constitution).

The limits of the rule of law
So an abuse of law can be inconsistent with the rule of law. Even if it is not, it might still be unconstitutional. Thus, it can be set aside by a court. But even if this is done, it does not mean that the abuse does not have costs. An NGO that constantly has to defend itself against legal harassment is less able to do its work. A public servant that faces a politically motivated prosecution is undermined by stress and fear. An authoritarian that abuses the law will always have these victories, no matter how often he loses in the courtroom. This is why abuse of law cannot be defeated by lawsuits only. It must also be defeated at the ballot box.