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Marikana persists: Remember the rule of law

Aubrey Masango was born in Mamelodi, east of Pretoria. Educated at St Johns College in Johannesburg and later went to the University of Pretoria to study to be a teacher. He was bored. He decided to get out of the corporate rat-race in 2009 because he did not like the person he was becoming in the BEE scene, seeing it as pretentious and unsustainable. These days, Aubrey is a talk show host on Talk Radio 702 and 567 Cape talk. His regular show “Talk with Aubrey” is on a Sunday evening at 23h00 to Monday morning at 01h00.

Marikana presents an opportunity for the government to stop trying to please everyone and show some real leadership. Delivering justice may alienate some constituents, but it will strengthen democracy in the long run.

The Marikana tragedy, which has dominated the news for the past month, has morphed into a real-time, national life metaphor from which we continue to observe and draw important lessons about our country and ourselves, if we dare. 

Marikana’s persistence in our minds is curious, even as events and intrigue continue to unfold. This persistence should make us ask ourselves important questions as we attempt to make sense of the situation. Are we indeed learning something here, or are we merely victims of our own drama, caught up and paralysed by what seems to be an overwhelming wave of events? Has Marikana rendered the rule of law impotent, whether through lawlessness by the miners, the police and the National Prosecuting Authority (NPA) or both? What can be done to bring a sense of order and direction to the countries general trajectory?

The faith citizens have in their state is inextricably linked to the confidence they have with the institutions charged with the responsibility of managing the concepts and values which give rise to the democratic state. Democracy, justice and the rule of law are of critical importance and define such a state. Ideally, these concepts and values emanate from the citizenry itself; they represent the desired lived reality of the people. 

These concepts are articulated into a constitution and further refined into statutory interpretation as laws. Citizens are then expected – and required – to conduct themselves according to this consensus-based code. Any breach of such laws threatens the cohesion of that society in unthinkable ways. Hence punishment when laws are transgressed. 

This ought to be the way things unfold in any country run by laws. Such a country is usually generally stable because institutions and agencies of the rule of law in that state are usually predictable in the way they apply the law. In this environment, the citizenry clearly understands that when laws are transgressed there are consequences. It is their law. There is a sense of shared ownership of the national code of conduct (even by those who transgress it) and so there is, or ought to be, an automatic deference to the law, an appreciation of the intrinsic value of the rule of law. 

This should not be confused with the mere appreciation of the existence of laws but more significantly; the appreciation of the principle that “it is laws which govern here and not the precarious whims and sentiments of men and women”.

As Marikana attests, however, we are caught in a collision of values, a confusion of the law and a mockery of justice as unresolved historical structural inequalities and injustices re-emerge with the solemn promise of recurrent instability until adequately addressed. 

We have a government (legitimate as it may be, although some are beginning to question the notion) that is philosophically, intellectually and operationally ill-equipped to deal with the complexities of a dynamic but desperately unequal society. The absurd decision to charge mineworkers with murder based on the archaic “common purpose” doctrine by the NPA is a case in point. Its incompetence exacerbated by greed and corruption. 

Unions clamouring for relevance in an increasingly militant labour environment are at the same time seduced by the allure of the creature comforts of capitalism and suffer an inevitable resultant organisational identity crisis. Business, particularly a mining sector that has thrived and is deeply rooted in a criminally structured economy unable to transform itself, is hamstrung by equally criminal global market forces. Workers, betrayed by unions seen to be in bed with both government and the bosses and are disillusioned by laws that make no sense to them, are constantly faced by the relentless demands of ever increasing costs of living. Citizens confused by their loyalty to politics of identity and race are unable to move beyond these barriers of thinking, unable to respond actively and pragmatically to the demands of a vibrant, rapidly transforming society.

This is the mirror which Marikana has held before us all. This is the reality of South Africa, presented in the microcosm that is Marikana, where the stakeholders in the unfolding story are eerily representative of the various groups, interest and sectors of the greater South African society. This is why it persists and dominates our national conversation. We are mesmerised by the national self recognition in this saga but paralysed by our impotence to deal with the challenge before us. The question is how do we respond to this overheating crucible of seemingly divergent values which threaten the concept of the rule of law and cast us all into oblivion? How do we deal with the glaring lack of leadership that is exposing us to political and economic opportunism? How do we effectively discourage the anarchic brandishing of dangerous weapons in protests or the murder of those who may have a different view than ours? 

We save ourselves from the possibility of anarchy by remembering and courageously implementing the law. We must remember that we are a country with a constitution and laws which were crafted with the challenge posed by the diversity of our society in mind. We must remember that this constitutional democracy, underpinned by the rule of law, was not achieved easily or lightly. Lives were lost over many centuries, sacrifices made, agreements reached in order to arrive at a peaceful settlement that we until recently affectionately referred to as the “New South Africa” as we basked in the glory of global admiration. 

We must remember that together we created policies to deal with the complexities of our economy and to deal with historical structural inequalities. Policies for redress, security of tenure, development and empowerment. Policies that have been implemented badly – or not at all. 

We must remember that our time to mature as a responsible democratic state in a global community has arrived and we can no longer wallow in the mire of indecision and the tantrums of a pubescent banana republic. We must remember that our government is responsible to all groups within its ambit of influence and is charged with the task of effectively managing these dichotomies with balance, equity and, most importantly, according to law. Not sentiment or whim! It is not an easy task, but that is why we have laws. Laws that can be challenged in a court of law if there are grievances, not on the streets or on koppies. We are after all a “legitimate democratic state” and we must remember that. 

Indeed, there are circumstances, some real and some imagined, that constrain the implementation of the rule of law in Marikana. But this is why leadership is not to be bestowed upon spineless powerbrokers with considerations other than the stability, prosperity and posterity of the nation. 

The Marikana situation is an opportunity for our government to show leadership by shedding the impossible desire to please everybody. Grow a pair and implement the law for all concerned! Let the chips fall where they may, but let it be known that this is a country of laws! The confidence of most will be redeemed from the confusion which currently reigns and threatens what we have all fought so long and hard to build. Remember the law and implement it! DM


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