Among the objectives of the South African Constitution, are to lay the foundations for a democratic and open society in which government is based on the will of the people, and every citizen is equally protected by law. Government is to advance human rights and freedoms, and to ensure the supremacy of the Constitution and the rule of law. In short, the South African government’s primary duty is to advance the personal liberty and freedoms of all South Africans.
Liberty and freedom
However, liberty and freedom have been the subject of discussion by philosophers since time immemorial. The distinctions drawn between these two words are based on the many interpretations of the word “freedom”. South Africa’s history is such that perhaps there would be merit in a countrywide debate on the subject, so that citizens can gain a better understanding of the meaning of these terms and decide for themselves what kinds of freedom should most be safeguarded and enhanced by government as required by the Constitution.
Liberty and freedom are synonymous in the sense in which I use them; here they mean personal liberty – the liberty of each person to live according to their own choices, provided they do not attempt to coerce others and thus prevent them in turn from living according to their own choices.
But there are those who would ascribe another meaning to freedom, one of which is inconsistent with that of liberty; According to the Concise Oxford Dictionary freedom can also mean “exemption from duty, defect, disadvantage or burden, etc.” The problem according to this meaning is that the achievement of this kind of freedom generally requires government to impose burdens on people, which frequently require the use of coercion or force and for that reason are hostile to the liberty intended in the Constitution.
South Africa’s Constitution generally supports freedom in the sense of individual and personal liberty. Nonetheless, it also contains some “rights” that, if granted to some citizens, impose obligations on others and which therefore are inconsistent with the notion of individual rights and liberty. This inconsistency in the nature of the rights enumerated in the Bill of Rights has already resulted in Constitutional challenges against the government for alleged failure to supply items falling under the socio-economic rights sections of the Constitution. These ‘positive’ rights include such things as housing, health care, food, water, social security and education. In other countries these would not constitute Constitutional obligations but rather form part of the discretionary welfare functions of government. If these positive rights were taken to extremes, it would be the Constitutional Court and not the elected government that would end up preparing the country’s annual budget.
The role of government
Anti-social individuals such as murderers, rapists, robbers, burglars and other criminals use force against their victims and in so doing they infringe on their victims’ liberty. It is often forgotten that the primary reason for the institution of government is to attempt to stop the use of coercion and force by some members of a community against others. Unfortunately, these attempts are only ever partially successful. As philosopher John Hospers wrote in his book Libertarianism, “The major crimes throughout history, the ones executed on the largest scale, have been committed not by individuals or bands of individuals, but by governments, as a deliberate policy of those governments—that is, by the official representatives of government, acting in their official capacity.” South Africa has the unfortunate distinction of having been the site of one of those great crimes by government: the crime of apartheid.
Apartheid consisted principally of the violation of the liberty of black South Africans; the use of coercion and force against them by government. However, without that force or the threat of force simultaneously directed against white South Africans, the rigid implementation of apartheid policies would never have been possible. The Immorality Act and Mixed Marriages Act for example, were not promulgated because blacks and whites disliked each other.
The rule of law
Our Constitution then, like most constitutions, is designed to protect citizens from the abuse of power that we saw in former times. Indeed, the Constitution is designed to limit government, not to facilitate it. The “supremacy of the Constitution and the rule of law” are therefore among the Founding Provisions of the Constitution. Very few people however, understand this or the true meaning of the term “rule of law”. That lack of understanding did not though, apply to our first President Nelson Mandela, who said: “The rule of law, as I (admittedly a long retired old lawyer) understand it, refers to a structural exercise of rule as opposed to the idiosyncratic will of kings and princes. Even where the latter may express itself benevolently, the former is morally and politically superior. Where the rule of law does not apply, rulers assume entitlement to rule; the rule of law, on the other hand, places the emphasis upon structured responsibility and obligation.”
Although the application of the rule of law does not assure the existence of a free society, it greatly increases the likelihood of its existence. Strict application of the rule of law frequently assures the advancement of the human rights and freedoms of citizens.
Requirements for the rule of law include the following:
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All legislation must comply strictly with the provisions of the Constitution;
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There must be a rational connection between a law and its stated objective;
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Administrative discretion must be avoided – people must be ruled by law and not by the discretion of government officials;
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If the granting of discretionary powers is unavoidable, the purpose for which the powers are granted must be clearly circumscribed and there must be objective criteria according to which the discretionary powers may be exercised;
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Laws must not be ambiguous. They should be clearly articulated and certain;
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There must be consistency in the application of laws across the whole of society, not just parts thereof;
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Laws must be applied prospectively and not retrospectively;
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There must be a clear independence and separation of powers between the legislature, executive and judiciary – the legislature alone must legislate, the executive alone must execute, and the judiciary alone must adjudicate.
If they are to adhere to the requirements of our Constitution, all members of the various arms of government need to understand these principles that underlie the rule of law.
Advancing liberty
Liberty in South Africa will advance only when the majority of our peoples fully understand its nature and the benefits of living in a free society. We must all reject the initiation of coercion and violence in whatever form. Liberty will advance most rapidly when government itself rejects coercion and violence, except only in the use of retaliatory force to protect the liberties of citizens against criminals or invasion by a foreign power.
Liberty encompasses both economic freedom and civil liberties. The one cannot endure without the other. In promoting these principles of liberty, I believe that the Free Market Foundation’s extensive endeavours over the past year, as with the past three decades, have served the citizens of South Africa well.
Author: Dr Brian Benfield is the Chairman of the Free Market Foundation and this article is an edited version of his address to the Foundation’s Annual General Meeting held on 27 August 2009. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author's and are not necessarily shared by the members of the Foundation