More important than the rule of law: the rule of justice

Many people are offended by any characterisation of the violence and looting unleashed in SA this week as poor and hungry people taking advantage of the chaos to grab food and other basic necessities they ordinarily have limited access to. They point to the visuals of flat-screen TVs and other luxury items being stolen, and the obvious evidence that opportunistic criminality has hijacked the unrest for its own motives. 

But the “poverty/criminality” binary is a false debate. The violence can be driven by both legitimate desperation and criminal opportunism. We are after all a society beset by both. Acknowledging that there is legitimate anger in SA about our scandalous levels of poverty and inequality, and that hunger leads millions towards desperation and not caring about the broader consequences of violent looting, is not the same as excusing violence. Nor does tarring everyone with the “criminals” brush make the reality of economic desperation go away. 

We have seen enough of this in SA over so many years that we should have learned by now that it is our reality, and we should be asking and answering the bigger questions around why we are here, and why it is getting worse, not better. Today the anarchy is triggered by the incarceration of Jacob Zuma (whose fate is irrelevant to the bitter resentments of most of the looters), but months ago it was the “influx of foreigners”, and below-living standard wages before that, and a breakdown of services to local communities before that. 

What this tells us, again, is that we are living not so much in a democratic republic but a powder keg, a place of indescribable tragedy and sorrow. This is a place where inordinate wealth exists cheek-by-jowl with grinding, dehumanising poverty. Barring a radical change from its current political and economic trajectory, SA is a wholly inviable society. That is the reality neither our governing party nor our elites generally seem able to grasp. 

Knowing this, President Cyril Ramaphosa’s response to the crisis, while understandable, is wrong-headed. While there is lawlessness (an all too present reality in SA) that must be addressed, Ramaphosa is wrong to treat the problem only as a security challenge. Military deployment is risky for the following reasons: 

• Deploying the state’s primary arm of violence risks escalating the violence and increasing loss of life. The low levels of training and professionalism in SA’s security establishment always make police and military deployment a risky strategy. That is a real and potentially costly risk for Ramaphosa given his role in democratic SA’s last example of state-sanctioned mass shootings, the Marikana massacre.
• Because of the above, the possibility that even military deployment will fail to quell the situation is high. The risk of such failure is that it emboldens the instigators and perpetrators of the current violence and it makes it more likely that future protests will resort to violence as people learn that the state doesn’t have the much-threatened capacity to uphold the law.
• An increasingly weak state resorts to what weak states generally are: the repressive apparatus of cornered elites with declining moral and political legitimacy. The ANC, which is still the legitimate elected government and a party that styles itself “the leader of society”, must decide if it is willing to go down this route and is fully prepared for the inevitable consequences. 

It is not too late to bolster this response with other, more sustainable long-term solutions, even now. In the main, the people who are calling for a political as opposed to securocratic response do not mean we should negotiate with looters and agents of lawlessness. Nor do they mean Zuma should be released from prison (which is legally untenable and wouldn’t stop the looting anyway, since it is not about the short-term incarceration of a geriatric delinquent). 

At its most cogent, the call for a political response is a plea to our political authorities to deploy what little moral, political and economic capital they have left to address the long-standing grievances of the majority of South Africans, who yearn for a democracy that not only protects their civil rights as guaranteed in the Bill of Rights, but fulfils the promise of 1994 in its entirety. We cannot glibly assert the primacy of the rule of law while ignoring the rule of justice (in all its manifestations, political and economic). 

In his address to the nation Ramaphosa offered no hope for change to the people who are out on the streets destroying property because they have no property to protect; burning and looting government installations because they have no trust in them even when they are left to (mal)function unmolested; who think nothing of destroying the livelihoods of others because they have no livelihoods.

Too many South Africans now perceive themselves as having no stake in the protection of the status quo, no interest worth preserving in the democratic project, and no obvious brakes to deter them from destruction and chaos. If the system doesn’t work for you when it is left to its own devices, why would you care if it is brought crashing down in an orgy of (deceptively) cathartic violence?

What we are seeing play out in SA is widespread societal desperation. Sadly, nothing said by Ramaphosa would have soothed that desperation. In fact, nothing that is in the government pipeline will do anything to stem the desperate anarchy of people who no longer trust that their elected (as well as unelected) leaders care about their fate. 

But it can still be stopped. The deep wounds can still be bound and salved. The question is, do we have the vision, the boldness, the original solutions, and the courage to do so? Personally, and I don’t say this lightly, I don’t think the ANC can. I doubt any of our current political class can. But what about the rest of us?

• Mde, a former journalist, spokesperson for the trade & industry minister and consultant to Telkom, is a founder of LEFTHOOK, a Johannesburg-based research and strategy consultancy. He writes in his personal capacity.