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The rule of law: The blunt instrument we’re fortunate to have

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Andrew Ihsaan Gasnolar was born in Cape Town and raised by his determined mother, grandparents, aunt and the rest of his maternal family. He is an admitted attorney (formerly of the corporate hue), with recent exposure in the public sector, and is currently working on transport and infrastructure projects. He is a Mandela Washington Fellow, a Mandela Rhodes Scholar, and a WEF Global Shaper. He had a brief stint in the contemporary party politic environment working for Mamphela Ramphele as Agang CEO and chief-of-staff; he found the experience a deeply educational one.

The US Supreme Court last week issued two rulings in relation to healthcare and the institute of marriage. Those on the conservative end of the spectrum have said things such as “we might as well get rid of the Supreme Court to save money” or that the courts are going beyond “what is allowed in the Constitution”. Closer to home, the Farlam Commission’s report into the Marikana massacre was released by President Jacob Zuma’s who made an announcement to the nation.

While President Jacob Zuma read the executive summary of the Marikana Report to the nation, the widows and families of the massacre at the Lonmin mine listened, sat huddled around a small laptop in the Lonmin boardroom, ill prepared for its contents, as the timing of the President’s announcement had taken them by surprise.

Over the past two weeks, we have also seen the drama unfold around President Omar al-Bashir of Sudan. We have heard the half-truths; we have witnessed the vilification of the International Criminal Court and discussed the political solutions being peddled.

Our legal system was tested; it had issued an interim order on the Sunday, and then the issue was further argued on Monday as al-Bashir departed the Republic of South Africa from a military air force base.

The South African legal system, after interpreting and considering both international and domestic law, held that the South African government was required to arrest al-Bashir and hand him over to the authorities in The Hague.

Unfortunately, the State informed the court, unbeknown to it, al-Bashir had departed, flying away from a military air force base. The State was simply unable to assist the court and it was now impossible to comply with the court order. Now the executive has decided to appeal the decision of the North Gauteng High Court, Pretoria.

Following the High Court decision there has been scathing criticism of the judiciary with some going as far as to say our judicial system is breaching the bounds of its own authority and entering the space of the executive and/or legislature.

The argument is simply that the courts do not fully understand their mandate and that they are trying to usurp the ‘legitimate’ position of an elected government.

This sort of argument is not uniquely South African as was highlighted just this past week by criticism of the 5 – 4 US Supreme Court decision, which has ruled that same-sex marriages are now a right across all states in the United States of America. The conservative belt in America has similarly accused their own judicial system of being flawed, highly partisan and said these judges must be confused about the role they should be playing in society.

South Africa’s governing party has said there are elements of the judicial system that are behaving in a way which conflicts with the principle of separation of powers.

The law is a powerful tool that can craft a new beginning and create the framework for a (transitional) society to function. The South African democratic transition was facilitated through political negotiation, which culminated in a legal structure that lead to the Interim Constitution, the democratic handover and the eventual adoption of the Final Constitution.

However, the law in itself is an insufficient tool to drive and sustain meaningful change. It is important to remember that the law is a blunt instrument at its best and is insufficient when it is relied on solely to drive transformative societal change.

The law can provide the framework in which a society can operate and the basis for the hard work of leading and guiding a country. It is for those reasons that the rule of law are essential for the fabric of society to function, but it cannot on its own be counted on to fix what is wrong in the world.

The US Supreme Court, like our own Constitution, may now provide for equality; however, it will not on its own deal with prejudice, hatred and entrenched societal norms.

Our Constitution and the rule of law have not prevented the occurrence of hate crimes, prejudice, ‘corrective rape’ or discrimination.

The legal framework must be used strategically and consistently in order to align the state of a country with where it needs to be. Sadly, the legal framework is insufficient and in this past week we have seen the insufficiencies play out with the release of the Farlam Commission report on the Marikana massacre.

The powder keg of inequality and suffering that unfolded in Marikana before the gruesome events of August 2012 were in part facilitated by a structural system in many instances underpinned by the law.

The law was perverted where exploitive practices took advantage of mineworkers through the use of micro lending, collection costs and intimidation that created an entire system that degraded their dignity and their rights.

The broad strokes of the Farlam Commission are that they will be insufficient to achieve justice for those who were lost in the Marikana massacre and for those who were left behind.

The microcosm of Marikana may have highlighted our own deficiencies and the hubris in thinking we are exceptional and that we can bounce back from anything. We must be reminded that the Public Protector Advocate Thuli Madonsela, in her Nkandla report on the upgrades to Zuma’s private residence, was also unable to provide the final answers, or the clarity, or the justice or even the truth that we all crave.

Much more will be required from all of us.

There will be the opportunists who will flock to Marikana holding press conferences and opening criminal cases but we as South Africans must be reminded that the law was never going to be enough to solve the problems we have found ourselves in.

We will be required to confront the demons, some of our own making, and consider how best to deal with the inequality and suffering of others without relying on reports and the law to provide the solutions.

The law will always be a blunt instrument but we have the fortune of having it, and we can use it as a tool to confront all that is wrong in our society if we are brave and honest with ourselves. DM

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