Government, it has been said, is a necessary evil. It is the evil we must live with because in its absence life can be, in the words of Thomas Hobbes, the author of Leviathan, brutal, nasty and short.
There are several forms of governments: Monarchical like that of Swaziland; oligarchical, a government of few people; and a democracy in which all grown up people participate mostly through general elections.
To paraphrase what Winston Churchill said, democracy is the least evil of governments. At least in a democracy some of the evils people suffer are self-inflicted.
It has been said people in a democracy deserve the type of leadership they have. If they elect members of Parliament who turn out to be lazy and uncaring, it is the fault of the constituents. If they elect a president who turns out to be a dictator, whose fault is it?
To make democracy less evil and approach the ideal, certain conditions have to be satisfied.
The first of these is that those who wield political power—MPs, prime ministers and presidents—should be elected freely, fairy and transparently. There should be neither rigging nor intimidation.
Free and fair elections alone do not amount to a splendid form of democracy. There must be inherent institutions in society which provide safeguards. There must be a constitution which embodies the objectives of the State. On the basis of the constitution, substantive laws should be enacted by legislators.
The actions of government, individuals and bodies corporate should be in accordance with the constitutional and statutory laws. This is what we call the ‘Rule of Law’.
The 19th century English constitutional lawyer Dicey defined Rule of Law in a rather restricted manner. He correctly stated that no one should be punished except for breaking a law and the accused should be presumed innocent until a competent court declares that he or she is guilty. Dicey’s definition was intended to safeguard the rights of individuals.
These days we prefer saying that the laws of the State should be observed both by public officials and members of the civil society. Neither public officials who constitute a government nor individuals who constitute the civil society are expected to take the law into their hands.
If government must not tamper with the rights of individuals, neither must individuals disobey the law and the constitution which are supposed to reflect what Jean Jacques Rousseau called the General Will. If the constitution stipulates how presidents are elected or succeeded, that stipulation should be followed religiously. Once you start making exceptions, you invite chaos.
Access to justice and power should be open to all without regard to age, race, tribe, religion or any form of privilege. For holding the topmost positions, merit should be the only criterion. When one region, religion or tribe produces presidents of a country year in and year out, there will be dissatisfaction in other corners of the country. It was gratifying to learn from Nigeria president Goodluck Jonathan when he toured Malawi that in his country it is no longer a disadvantage to be a member of a minority in pursuit of political power.
Democracy is at work when justice is close to the ideal. A Greek philosopher defined justice as the pleasure of man in power. In other words, justice is what the ruler thinks it should be. This happens when the ruler chooses who the magistrate will be, when the courts simply do the will of the Executive.
It is a redeeming feature of the apartheid governments of South Africa which existed up to about 1990 that left courts relatively independent. I was told by the late Professor ZK Matthews of Fort Hare University that a South African judge of the time, even if he was a member of the ruling party, handled cases according to professional tenets. This was why the courts sentenced to life imprisonment, rather than death, members of the African National Congress (ANC) who had been accused of high treason.
Democracy does not say justice should prevail under all circumstances certainly when it leads to loss of life. In a democracy, there is room for mercy. Those accused may be pardoned if this contributes to peace and social stability. This is especially so if those pardoned demonstrate regret for the inchoate crime they committed. They frustrate the good intentions of those who gave the pardon if they start a process revenging in form of suits.
The first black president of South Africa, Nelson Mandela, has earned universal respect for what he did when he was presented with the findings of the Truth and Reconciliation Commission: He said let bygones be bygones and look forward to a better South Africa under a system of racial equality.
