When laws become weapons


When laws become weapons
When laws become weapons

When ordinary people have preposterous ideas, it (luckily) never goes further than their immediate environment – it simply remains a discussion over a cup of coffee or maybe a scribble into a diary. If they are blessed with honest friends or family, the holes in their plan are often pointed out.

However, when rulers have preposterous ideas, it unfortunately seems that these ideas are often included in memoranda. If left there, it would have been the end of the story. But memoranda are prone to turn into emails and these end up on committee desks, where wise old men nod their heads and sign these with pens that are mightier than the sword. Thereafter, the ideas appear in the Government Gazette and the public have to put on their reading glasses.

South Africa is a democratic, constitutional state. Although not stated explicitly, the Constitution allows for checks and balances to separate powers. This principle (known as the trias politica) was described by the French philosopher Baron de Montesquieu in his The spirit of the laws, written against the background of the French Revolution – a revolution of which the domino-effect can still be felt today. The principle is that state power must be separated between the legislative (parliamentary), the executive (cabinet) and the judicial power (the courts). This separation must ensure that no power overwhelms or overpowers another. Various democratic countries have their own variations of this. South Africa has developed its own version over the past two and a half decades.

Referring to state capture, tender fraud and corruption in various state institutions, it can be said that the South African model shows major shortcomings in preventing the capturing of state entities from reigning supreme in the first place, and courts from having to contain the damages. Various experts have provided reasons for this. Among others, it is exacerbated by the fact that the phrase spheres of government does not provide specific boundaries, as well as that an ideological interpretation of the Constitution promotes transformation. Government hardly ever make laws that their own leadership disproves of. About 90% of bills are initiated by the executive authority, and the ANC controls about 62% of seats in parliament. Another point that may possibly be overlooked, is that public participation in parliamentary issues is not significantly high. According to a study undertaken by Ipsos in 2019 on the activities of parliament, only 14% of respondents knew how to participate in the activities of parliament.

Frédéric Bastiat was another thinker who wrote after the French Revolution and warned that people’s freedom is held hostage by certain laws of the authorities. To determine whether a deed can be considered a legal plundering, Bastiat wrote, it should be ascertained if the law allows for the property of one person to be confiscated and transferred to another person. Moreover, it should be ascertained whether the law benefits one person at the expense of another by doing what a person cannot do themselves without committing a crime. Bastiat argued that no society can continue to exist without respect for justice. If morality and laws contradict one another, the public has to make the difficult choice of either letting go of its morals or losing respect for the law.

There are currently many bills aimed at pushing through preposterous ideas, for example the proposed Expropriation Bill. The latest example is the proposed amendments to firearms legislation that are aimed at disarming people.

International research on firearm ownership and violence came to divergent conclusions, probably because of numerous variables like culture, the attitude towards firearms, the types of weapons, competent security services and the presence of various psychoactive drug.

The journalist Peter Hichens investigated the expropriation of law-abiding citizens’ firearms and argues that expropriation is a fundamental contravention of the assumption of innocence. It is therefore assumed that the person already has a criminal intention and motive. Although it can be argued that people with a history of violent behaviour should be prevented from owning weapons, the idea that all people should be disarmed is irrational and unrealistic.

Hichens says with good cause that there is nothing wrong with people having ideas. In fact, no one can dictate to anyone else what they should think or how they should feel about their thoughts. This would amount to a violation of the right to a free conscience.

Nonetheless, ideas – formulated by authoritative people – should be tested against an understanding of reality before being rolled out on a national level.

Johan Nortje is a researcher at AfriForum Navorsing.

Read the original article in Afrikaans on AfriForum