Power does funny things to people. A communist who becomes a minister suddenly believes he has a right – at the taxpayer’s expense – to be driven around in a million rand limousine and to stay at the luxurious Mount Nelson Hotel, probably the most colonial of hotels in Africa. Democratic Alliance (DA) leaders who squeal day and night about the flouting of the Rule of Law by the ANC suddenly blithely advocate lawlessness on the part of law enforcement officers when they become MECs.
The latest victim of this kind of power-sickness is a man named Robin Carlisle, the Transport and Public Works MEC for the DA Western Cape government. Carlisle has instructed law enforcement officers to pull over drivers and, if they are believed to be fatigued, to confiscate their car keys to force them to rest. The problem is that there is no law that empowers law enforcement officers to detain drivers in this way and to confiscate their car keys.
When asked about whether it was legal to confiscate the car keys of drivers, Carlisle said: “I have no idea, but I don’t care either… We have got no option but to pull out all the stops, whether illegal or legal… I just don’t know what else to do than to become very rough.”
It might well be that tired drivers pose a danger to other motorists and to themselves. If there were an accurate method to test drivers for fatigue (which, I suspect, there is not) and if there were an empowering law that allowed officers to limit the right to movement of ordinary citizens in this manner, Carlisle’s idea might have been worth exploring.
The problem is there is no law that empowers this kind of behaviour, so Carlisle is brazenly admitting that he has instructed law enforcement officers to break the law. This is the very law that officers are supposed to uphold, the law that limits the powers of law enforcement officers in order to protect citizens from the potential abuse of power by those who can so easily lord it over the rest of us because they wear a uniform.
What Carlisle is in effect saying is that there is one set of rules and principles that should apply to the ANC government and another set that should apply to the DA. When the ANC flouts the law, it is the end of civilization as we know it. When the DA instructs law enforcement officers to flout the law, they should be cheered on because the DA could be trusted to flout the law only if it is in our collective interest.
What makes it worse is that Carlisle has not issued any guidelines to protect ordinary citizens against the abuse of power that will inevitably flow from this unlawful instruction. In the absence of legally imposed guidelines to direct the exercise of such a drastic and invasive discretion by law enforcement officials, it is inevitable that some motorists will become victims of arbitrary harassment by officers, who – let’s face it – are not known for their wisdom and their deep respect for the rights of others.
Who is going to protect innocent motorists from the possible power-hungry or insecure traffic cops out there? Who will make sure that traffic cops will use this power fairly and will not target motorists based on their race, class or gender? In almost all cases it will be impossible to determine with accuracy whether a driver is fatigued or not. This means that if Carlisle gets his way, a traffic cop will be able to stop anyone and confiscate that person’s car keys because the traffic cop says so.
Although not posing the same degree of danger as statements by politicians and police leaders to “shoot the bastards” (who might or might not turn out to be criminals), the principle remains the same. This is the thing with principles: one has to stick to them. If one applies a different set of principles to oneself than one applies to ones opponents, one will rightly be called a hypocrite. Apart from the hypocrisy, it is also deeply illiberal. The DA is supposed to be a liberal party, so when one of its MEC’s advocate the brazen flouting of the Rule of Law, this raises serious questions about the party’s commitment to liberal values.
This kind of logic leads to the unofficial sanctioning of the torture of innocent people and of unlawful arrest and detention. It leads to an abuse of power. Always. After all, if results are all that matters, then surely we should not worry too much that our law does not empower police officers to torture ordinary citizens as long as the torture lead to the arrest of people who might be criminal suspects.
I don’t want to live in a country where traffic cops think that they can stop me without any good reason and take away my car keys because some cowboy MEC has told them to ignore the law. Helen Zille should immediately take action against MEC Carlisle, who is bringing her administration into disrepute and creating the impression that the DA government endorses lawlessness. Quite frankly, I would feel much safer if Carlisle were fired forthwith. If no action is taken we will know that Zille, too, does not respect the Rule of Law when it suits her, and when a few votes could be won by flouting it. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.