The Role of Legal Rights and the Legal System in furthering Democracy and Political Stability

Was it not Aristotle who said, “When states are democratically governed according to law, there are no demagogues, and the best citizens are securely in the saddle; but where the laws are not sovereign, there you find demagogues,”?Aristotle,?Politics.

It stands to reason therefore that the role of legal rights and a legal system based on constitutional principles must at its very heart seek to deepen democracy and thereby create political stability. At any rate this is the promise to our nation provided for in the Constitution. Inherent in this promise to our nation of a constitutional democracy is the principle of popular sovereignty, in which citizens are seen as the final source of the authority of the government, while in return the government derives its right to govern from their consent.?In the case of?United Democratic Movement v Speaker of the National Assembly?in 2017, the South African Constitutional Court defined a constitutional democracy as a "government of the people, by the people and for the people through the instrumentality of the Constitution."?The Court added that "central to this vision [of constitutional democracy], is the improvement of the quality of life of all citizens and the optimisation of the potential of each through good governance."

So, one may ask how does a legal system based on constitutional principles deepen democracy and create political certainty? Very simply put, our Constitution prescribes the social values of the country, and sets out the structures of government, what powers and authority a government has, and what rights citizens enjoy. More especially, the preamble and founding provisions of the Constitution set out the principles and guarantees for democracy in South Africa.

Our Constitution is akin to the Aristotelian notion of a “sovereign law” because the Constitution is the supreme law in the land and no law can exist which contradicts with it. It is also much more difficult to change the Constitution than any other law, given that it needs a two thirds majority vote in Parliament. The Constitution therefore protects democracy in South Africa, recognising that no government should have unfettered power. The history of the world is replete with the consequences that occur when power remains unchecked.

The Department of Justice highlights the following areas listed below as the mechanisms through which our Constitution helps to guard against abuse of power by:

? Having rules about when elections should happen and who governs;

? Making it very difficult to change the Constitution at will;

? Making sure that no person or government body has too much power;

? The separation of powers (splitting power between the different arms of government – Legislature (Parliament), Executive (Cabinet) and the Judiciary (the Courts, with the apex court being the Constitutional Court);

? Setting out the human rights that people enjoy in a Bill of Rights;

? Creating independent courts and commissions that will protect people’s rights, as well as monitor the government to make sure that it is doing its work properly; and

? Making it compulsory for all government bodies to be accountable and transparent to the public.

Within this rights based eco-system created by our Constitution, civil society and organisations like LegalWise South Africa have a role to play too in furthering democracy and as a consequence political stability. Recently, LegalWise launched its Impact Litigation Unit (ILU) as a vehicle to drive positive social change for all South Africans and help realise a more equal, just and thriving society. With an enduring legacy of providing our members with affordable access to justice, the ILU now amplifies and extends the right to access to justice to not only include our members, but also other vulnerable individuals within the broader South African society. The ILU takes on matters of public interest that will achieve broad legal change to systemic social issues. The focus of the ILU apart from planning and preparing selected litigation matters on behalf of claimants for Court, also includes research and advocacy initiatives focusing on constitutional and human rights issues.

Recently the ILU together with the First Applicant Ms. M (name withheld), Lawyers for Human Rights and the Children’s Institute (as Amicus Curiae or Friend of the Court), initiated legal action against the Department of Home Affairs on behalf of our Member’s, who have been grappling with the distressing issue of blocked IDs for years. This pivotal case was heard in the Gauteng High Court in Pretoria in September 2022 and judgment was handed down on 16 January 2024. In brief, the Gauteng High Court declared that the Department of Home Affairs’ conduct of placing markers on identity numbers and identity documents causing them to be “blocked” is unjust, invalid, and inconsistent with our Constitution. As you can imagine blocked IDs have profound implications for the approximately 800?000 South Africans whose identity documents were blocked by the Department of Home Affairs as the documents are indispensable for various essential activities, including marriage, banking, healthcare access, employment, registering births of children, and even the exercise of voting rights in the upcoming elections. The ruling holds immense significance as it directly impacts the fundamental rights and privileges of every citizen.

So, as we head to the polls soon, let us not take for granted the role every one of us plays, both individually and organizationally in creating a legal eco-system where the rule of law remains paramount and democratic values are jealously protected.

Remember, “the rule of law is order and good law is good order,” Aristotle.

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