The South African Constitution is a model to the world in its endorsement of the rule of law. The core principle is that no one is above the law, as interpreted by a judiciary that is independent of government influence. It is also one of the first constitutions in the world to include the right of access to information, in order to promote the accountability of government to the public it serves.

Our two organisations, committed to the rule of law as a fundamental democratic value, have been shocked by a series of recent proposals which threaten a u-turn in South Africa, away from the rule of law and in the direction of the authoritarian attitudes of the past. In particular, the Protection of State Information Bill will curtail openness of the exercise of public power, make it more difficult to combat corruption, and will reduce governmental accountability and fair sentencing in trials.

In addition, we are deeply concerned at the commissioning by the Cabinet of “research” to test whether the courts are pursuing goals such as “transformation”. This kind of inquiry, dressed up as an objective and innocent investigation, is completely unjustified. In the context of recent attacks on the judiciary for holding against the executive, it clearly masks an expectation that the courts should bow to the policies of the government of the day. Such a blatant misconception of the independent role of the courts was also shown recently in the support of the South African government for the suspension of the SADC Tribunal after it acted independently by holding against the government of Zimbabwe.

It is tragic that South Africa’s record as a beacon of democracy and the rule of law is being tarnished by these acts. We trust that these retrogressive measures will be rethought and withdrawn.

Justice Johann Kriegler, Chairman of the Board of Directors, Freedom Under Law, Johannesburg

Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre for the Rule of Law, London
4 December 2011