Not a theoretical idea

30 Aug 2021 12:00 pm by John de Villiers

Why rebuilding and the Rule of Law?

Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace - underpinning development, accountable government, and respect for fundamental rights.

As communities and businesses in Kwa-Zulu Natal and Gauteng set about rebuilding following the devastating riots and looting, it might not seem a necessary or practical aim, to consider the Rule of Law. Not so, especially as there is a high correlation between the rule of law and that which all societies want to achieve. The bottom line is that in countries where the rule of law is strong, other positive social and economic factors within those countries are also strong. This is evidenced by the LexisNexis Rule of Law Impact Tracker®, an interactive tool which quantifies the relationship between the rule of law and social and economic development.[1]

Using the tool one can see a clear connection between the quality-of-life people have and the strength of the rule of law.  For example, a stronger rule of law normally means a higher GDP per capita, lower child mortality rates, lower homicide rates, less corruption, and a higher life expectancy. For instance, an improvement of just 1% in the rule of law score should reflect an increase of $676 GDP per capita, a decrease of 0.2 homicides per 100 000 of the population, a decrease of child mortality by 1 per 1000 children, while average life expectancy will increase by 0.2 years.

The Index is intended for a broad audience that includes policy makers, civil society organizations, academics, citizens, and legal professionals, among others. It is a diagnostic tool which can be used to help identify strengths and weaknesses and encourage policy choices, guide program development, and inform research to strengthen the rule of law. It is not merely a theoretical construct.

Defining the Rule of Law

The World Justice Project Rule of Law Index® as the world’s leading resource for data on the rule of law, defines the rule of law as being:

Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace - underpinning development, accountable government, and respect for fundamental rights. Traditionally, the rule of law has been viewed as the domain of lawyers and judges. But everyday issues of safety, rights, justice, and governance affect us all; everyone is a stakeholder in the rule of law. [2]

What is measured?

Some 128 countries are measured across the following eight factors against 44 indicators:

  1. Constraints on Government Powers
  2. Absence of Corruption
  3. Open Government
  4. Fundamental Rights
  5. Order and Security
  6. Regulatory Enforcement
  7. Civil Justice
  8. Criminal Justice

These are underpinned by four principles aimed at delivering a durable system of laws, institutions, norms and community commitment. They are:[3]

  1. Accountability
  2. Just Laws
  3. Open Government
  4. Accessible and Impartial Dispute Resolution

Expanding the conceptual framework of the Index into the 44 indicators gives us more detail:

Factor 1: Constraints on Government Powers

Comprises the means, both constitutional and institutional, by which the powers of the government and its officials and agents are limited and held accountable under the law. It also includes non-governmental checks on the government’s power, such as a free and independent press, using the following indicators: [4]

  1. Government powers are effectively limited by the legislature
  2. Government powers are effectively limited by the judiciary
  3. Government powers are effectively limited by independent auditing and review
  4. Government officials are sanctioned for misconduct
  5. Government powers are subject to non-governmental checks
  6. Transition of power is subject to the law

Factor 2: Absence of Corruption

Considers three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of public funds or other resources. These three forms of corruption are examined with respect to government officers in the executive branch, the judiciary, the military, police, and the legislature, using the following indicators:[5]

  1. Government officials in the executive branch do not use public office for private gain
  2. Government officials in the judicial branch do not use public office for private gain
  3. Government officials in the police and the military do not use public office for private gain
  4. Government officials in the legislative branch do not use public office for private gain

Factor 3: Open Government

Measures the openness of government defined by the extent to which a government shares information, empowers people with tools to hold the government accountable, and fosters citizen participation in public policy deliberations. This factor measures whether basic laws and information on legal rights are publicized and evaluates the quality of information published by the government using the following indicators:[6]

  1. Publicized laws and government data
  2. Right to information
  3. Civic participation
  4. Complaint mechanisms

Factor 4: Fundamental Rights

Recognizes that a system of positive law that fails to respect core human rights established under international law is at best “rule by law,” and does not deserve to be called a rule of law system. Since there are many other indices that address human rights, and because it would be impossible for the Index to assess adherence to the full range of rights, this factor focuses on a relatively modest menu of rights that are firmly established under the United Nations Universal Declaration of Human Rights and are most closely related to rule of law concerns. It uses the following indicators:[7]

  1. Equal treatment and absence of discrimination
  2. The right to life and security of the person is effectively guaranteed
  3. Due process of the law and rights of the accused
  4. Freedom of opinion and expression is effectively guaranteed
  5. Freedom of belief and religion is effectively guaranteed
  6. Freedom from arbitrary interference with privacy is effectively guaranteed
  7. Freedom of assembly and association is effectively guaranteed
  8. Fundamental labour rights are effectively guarantee

Factor 5: Order and Security

Measures how well a society ensures the security of persons and property. Security is one of the defining aspects of any rule of law society and is a fundamental function of the state. It is also a precondition for the realization of the rights and freedoms that the rule of law seeks to advance, and uses the following indicators:[8]

  1. Crime is effectively controlled
  2. Civil conflict is effectively limited
  3. People do not resort to violence to redress personal grievances

Factor 6: Regulatory Enforcement

Measures the extent to which regulations are fairly and effectively implemented and enforced. Regulations, both legal and administrative, structure behaviours within and outside of the government. This factor does not assess which activities a government chooses to regulate, nor does it consider how much regulation of a particular activity is appropriate. Rather, it examines how regulations are implemented and enforced using the following indicators:[9]

  1. Government regulations are effectively enforced
  2. Government regulations are applied and enforced without improper influence
  3. Administrative proceedings are conducted without unreasonable delay
  4. Due process is respected in administrative proceedings
  5. The government does not expropriate without lawful process and adequate compensation

Factor 7: Civil Justice

Measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system. It measures whether civil justice systems are accessible and affordable as well as free of discrimination, corruption, and improper influence by public officials. It examines whether court proceedings are conducted without unreasonable delays and whether decisions are enforced effectively. It also measures the accessibility, impartiality, and effectiveness of alternative dispute resolution mechanisms using the following indicators:[10]

  1. People can access and afford civil justice
  2. Civil justice is free of discrimination
  3. Civil justice is free of corruption
  4. Civil justice is free of improper government influence
  5. Civil justice is not subject to unreasonable delay
  6. Civil justice is effectively enforced
  7. Alternative dispute resolution mechanisms are accessible, impartial, and effective

Factor 8: Criminal Justice

Evaluates a country’s criminal justice system. An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism to redress grievances and bring action against individuals for offenses against society. An assessment of the delivery of criminal justice should take into consideration the entire system, including the police, lawyers, prosecutors, judges, and prison officers, it uses the following indicators:[11]

  1. Criminal investigation system is effective
  2. Criminal adjudication system is timely and effective
  3. Correctional system is effective in reducing criminal behaviour
  4. Criminal justice system is impartial
  5. Criminal justice system is free of corruption
  6. Criminal justice system is free of improper government influence
  7. Due process of the law and rights of the accused

South Africa’s score and ranking

Using the above indicators as a reference, and against the backdrop of recent events, where does South Africa rank globally?

Out of 128 countries we are at number 45 with a score of 0.59, indicating a stronger rather than a weaker adherence to the rule of law, but behind Namibia, Rwanda, Mauritius, and Botswana in Africa.  [12]

Factor

Factor Score (0 weakest to 1 strongest)

Global Rank

Constraints on Government Powers

0.63

33/138

Absence of Corruption

0.48

58/128

Open Government

0.62

30/128

Fundamental Rights

0.64

41/128

Order and Security

0.61

110/128

Regulatory Enforcement

0.56

45/128

Civil Justice

0.61

41/128

Criminal Justice

0.53

44/128

The scores indicate South Africa has a global rank exhibiting many of the aspects of a constitutional democracy in an upper middle-income country. These are: a fairly open government, combined with some measure of restraint over government powers, a broad respect for fundamental rights, and regulatory enforcement. The civil justice system ranks substantially higher than the criminal justice system. There is however one glaring exception and a tragic correlation – Order and Security.

To recap Factor 5 above, it measures how well a society ensures the security of persons and property. Security is one of the defining aspects of any rule of law society and is a fundamental function of the state. It is also a precondition for the realization of the rights and freedoms that the rule of law seeks to advance, and uses the following indicators:

  1. Crime is effectively controlled
  2. Civil conflict is effectively limited
  3. People do not resort to violence to redress personal grievances

South Africa ranks a dismal 110 out of 128.


1 LexisNexis Rule of Law Impact Tracker®
https://www.lexisnexisrolfoundation.org/tools.aspx?p=tools

2 World Justice Project Rule of Law Index®   https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020-Online_0.pdf

3 World Justice Project Rule of Law Index at 11 et seq

4 World Justice Project Rule of Law Index at 22

5 World Justice Project Rule of Law Index at 23

6 World Justice Project Rule of Law Index at 24

7 World Justice Project Rule of Law Index at 25

8 World Justice Project Rule of Law Index at 26

9 World Justice Project Rule of Law Index at 27

10 World Justice Project Rule of Law Index at 28

11 World Justice Project Rule of Law Index at 29

12 World Justice Project Rule of Law Index at 136