My understanding of the rule of law is the principle that no person is above the law.
When I grew up in post-apartheid South Africa, this was not the case. The laws that applied to black people were laws that supported the notion of oppression, and white people were immune to those laws.
Even up until the early 90s, we had restaurants for white people and restaurants for black people. Separate buses, toilets and even beaches that were signposted “Whites only”. We had to live in a ghetto away from where the white people lived.
Black people were treated worse than dogs. A good example of this is that it was very common to see a white man driving a ute through a rain storm, with his dog sitting dry in the front seat, while a black person sat in the back in the rain.
Once I spent three months locked up with no charge for speaking to a white girl at a supermarket. The police accused me of having sexual relations with her. I had no opportunity to speak to a lawyer or defend myself, and was sentenced to six cuts of the whip. I still have the scars on my back.
The best explanation for the rule of law in South Africa, when I grew up, is that it was non-existent.
Perhaps a better-known example of the rule of law being ignored in South Africa’s past was when Nelson Mandela and his co-accused were charged with sabotage – effectively treason – against the government in the 1963 – 1964 Rivonia trial.
Mandela had launched a series of non-violent strikes and protests called the Defiance Campaign against the laws of apartheid, which eventually culminated in a military uprising after the Sharpeville massacre in 1960, when South African police killed 69 protestors. Mandela was arrested and tried in 1964 for recruiting, training and conspiring against South African authorities. He was sentenced to life in prison and spent 27 years locked away until President F.W. de Klerk released him in 1990.
Compare that to the treatment of white generals Christian De Wet, J. C. Kemp and others found guilty of high treason arising out of the 1914 Maritz Rebellion. Although all the men were politicians and charged with the same offence which carried a maximum sentence of death penalty or life imprisonment, the highest sentence that De Wet and his co-offenders received was seven years in prison.
One might argue that the 1914 rebellion was far more bloody and violent than the largely non-violent resistance that Mandela led. De Wet was released within 6 months of his conviction and sentence, and the rest of his co-offenders within a year. Mandela spent 27 years in prison for the same offence. Is that really equality before the law?
In post-Apartheid South Africa, the rule of law is still non-existent.
Today, in South Africa, the problem is the interference of politicians in the criminal justice system.
The criminal justice system is supposed to be the cornerstone that ensures people are punished for not following the law and for ensuring that the law is upheld. What’s happening now is you find the most prominent officials in the criminal justice system are appointed by politicians. The politicians expect some favours in return – most often that they can’t be prosecuted for their crimes. It is corruption in its most basic form.
I watch what is happening in South Africa and think to myself, where is the rule of law?
Not so long ago, Grace Mugabe, the wife of Zimbabwe President Robert Mugabe and first lady in Zimbabwe, was accused of assaulting a model with an electric power cord. She was granted diplomatic immunity in August. She allegedly committed a crime when she was in South Africa. But because she is the wife of a President, she was granted immunity before trial.
If that had happened in Australia, would she have been granted immunity?
In 2016 the High Court of South Africa found that the South African President, Jacob Zuma, breached the Constitution by failing to repay millions of dollars in state funds to renovate his private home. No further action has since been taken to make sure that Zuma repays the money. A President can be impeached for an offence like that in a Western country.
Mr Zuma is still the President of South Africa and there are no further charges forthcoming. It would seem he is above the law. The South African High Court has also declared that Zuma should face more than 700 criminal charges of corruption, fraud, money laundering and racketeering.
The National Prosecuting Authority has mysteriously withdrawn those charges.
Do I think there is a rule of law in South Africa? The shortest answer is no.