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Freedom Day: Apartheid’s culture of authority lingers on


Prof David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and the University of Reading. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law. His latest book Fundamental Rights and the Legal Obligations of Business has just been published by Cambridge University Press.

To usher in the era demanded by our Constitution, all South Africans must resist arbitrary exercises of authority and hold the government to account for measures it has adopted.

As South Africa celebrated Freedom Day, its people were locked up in their homes. On this day in 1994, the nation stood in long queues rediscovering the common humanity of its people, irrespective of race, and experienced the power of human social connection. Today we are required to remain in social isolation. Unlike under the apartheid regime, these measures are justified as a means to protect those most fundamental of goods for all – health and life.

Nevertheless, despite the good intentions of the lockdown and the justifiability of some of its measures, the response by the government has demonstrated our as-yet imperfect transformation into a constitutional democracy.

An influential article by a brilliant legal scholar who died young – Etienne Mureinik – argues that the new constitutional order in South Africa must be understood as a move away from a “culture of authority” to a “culture of justification”. In a “culture of authority”, a decision is legitimate simply if it is issued by the branch of the state authorised to make it. It focuses on the “office” or “source” of a decision, not on its contents.

Thus, under apartheid, if the parliament passed a law – no matter how unjust it was – there was no way to challenge it on substantive grounds. That is why that old parliament could pass wholly unjustifiable laws such as the Group Areas Act, which sanctioned racial discrimination without any legal challenge.

Mureinik argued that this culture affected the entire system of governance in South Africa under apartheid, which was based on unreasoned command by a higher authority. Indeed, this culture was so powerful that apartheid policies were implemented even by businesses and private individuals who were not required to do so.

The new South African Constitution was meant to signal a fundamental break from this system and to entrench instead a “culture of justification”.

In such a society, for a decision to be legitimate, it is not enough that it be made by a body authorised to do so: there must also be substantive reasons that justify it. The new order, writes Mureinik, must be a “community built on persuasion not coercion”.

Influenced by Mureinik’s work, the Constitutional Court adopted the position that all exercises of public power are only lawful if they are rational – capable of being justified. In such a society, there is a completely different relationship between the government and those it governs: people obey the government not simply because they are afraid but because they can see the sense in decisions that are made. Ultimately, such a culture of justification demonstrates respect for the dignity of every individual and their ability to be persuaded by reasoned argument.

The response of the South African government to Covid-19 has, in some respects, sought to give effect to a culture of justification. The President has, in several clear public addresses, sought to explain to the public why he has adopted lockdown measures – though, sadly, journalists were not able to pose clarifying and critical questions directly to him.

The government is also to be commended for publicly sharing a presentation by Professor Salim Abdool Karim, chairperson of the Covid-19 Ministerial Advisory Committee, explaining the reasoning behind the government’s decision to extend the lockdown for a further two weeks. These communications have been designed to educate and persuade. 

Unfortunately, however, that approach has not permeated throughout the government’s response. South Africans have discovered that old habits die hard and, in significant areas, a harsh culture of authority remains that imposes unreasonable restrictions which appear to show disdain for requirements to justify decisions.

South Africans struggled to understand why the government had decided to ban the sale of alcohol and cigarettes and little attempt was made to justify the move before legal action was initiated. A blanket ban on such substances is both excessive and unreasonable: for those with addictions, the inability to acquire cigarettes, for instance, can lead to severe withdrawal symptoms and be harmful to their health – yet the very goal of the regulations is to protect health. Similarly, the ban on the sale of hot cooked food by retail outlets was introduced without clear explanation, justifiably attracting howls of disapproval.

Failures of justification and arbitrariness can also come from inaction. The government has, commendably, developed a number of impressive economic measures to help the most vulnerable, yet there is an obvious gap. The most vulnerable include large numbers of people from elsewhere in Africa who live in South Africa and are unable to access social security grants. Some of them are literally starving as we speak.

Why have emergency economic measures not included all who are in conditions of dire economic need? The government has not sought to explain its failure to address this gap.

However, the most profound instance of a residual culture of authority lies in the enforcement of lockdown measures by the security forces. I was extremely worried when I heard that the army had been deployed – the army is primarily trained to address external threats and not to engage in the policing of civilians.

My unease was justified: many instances have emerged of the army abusing its authority and, in one terrible case, allegedly battering Collin Khosa to death.

The South African Police Services have also failed to cover themselves in glory, with numerous allegations of abuses including arresting an individual for selling atchar. The culture of the enforcement services in South Africa appears to mimic what occurred under apartheid with its philosophy of “might is right”.

The blame for this must to some extent be placed on the shoulders of the senior echelons of government and the enforcement services. From the President down to Ministers to generals and the National Commissioner, the message must be clear that the state’s armed and police forces are deployed to serve and help the people, not to coerce them.

The first response to infractions of Covid-related regulations should be to engage and educate about why these restrictions should be followed. To do so successfully, the restrictions must be rational. Arrest and the use of force should be discouraged and only utilised as a last resort.

The response of the government to Covid-19 has demonstrated that the culture of the South African government has not, in significant respects, changed to reflect justification. Some in the public sphere have also sought to support the heavy-handedness because they support the wider goal of limiting the spread of Covid-19. Yet, the reality is, to usher in the era demanded by our Constitution, all South Africans must resist all arbitrary exercises of authority and hold the government to account to justify the measures it has adopted.

No doubt, in many respects, the government response is commendable and many facets of the lockdown are justifiable. Many others are not – either way, we must insist that all spheres of government justify their actions to us and treat us with the dignity the Constitution promises we all deserve. DM


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