Published in the Sunday Times 05 January 2025
With the proliferation of illegal mining, unregulated street vendors, unregistered doorstep retail outlets, and other signs of functional decay, the urgency of the situation in South Africa cannot be overstated. The continued disregard for laws and systems paints a picture of a country growing more dangerous by the day, with grave implications for the stability of the constitutional and democratic order. Immediate action is needed to restore order and prevent further decay.
Given
the distressing reality, the conclusion that South Africa might have a
condition of a dual state is not far-fetched. One state is documented citizens,
and the other is those who came to RSA, living, trading, and enjoying public
service benefits without anyone knowing who they are. They do not officially
have any record of being in the country. This makes RSA effectively have a
state which effectively runs through the dictates of a democracy operating
within the supremacy of the law and another one run by the prerogative and
arbitrary whims of a parallel and lawless state.
The prerogative state
has developed its political economy, informal criminal justice system
management processes, and economic value chains outside the formal and
normative state systems and standards. In a prerogative state, society is subjected to 'rulers' who rule
by their laws. They corrupt and co-opt the normative public service system to a
point where what is lawful applies in areas where those who rule ‘the other
state’ allow it. Those with prerogative state power make it all but impossible
to enforce any norms or even to know whether they are being violated in the
first place. They can run a mining industry in the glare of authorities without
restraint until there is a complainant. They run rogue units within state
agencies and harass whoever is at variance with their prerogative interests.
They have rules for themselves and the rest of “we the people”.
Members of this ‘other
state’ settle in a way that they become a substantial political majority where
they live. With little to lose as a community, together with their lived
experience of stateless countries, fragile to failed states, and a legacy of
being a transitioning community cohort, they have mastered the art of building
unequalled ideological and moral legitimacy to live a life of sub-contexts that
undermine the normative state which hosts them.
Like
any anarchy, the context of lawlessness undermines the most basic norms of
society and attracts majority rejection. However, it is crucial to remember
that lawlessness does not render norms irrelevant. In a constitutional order
founded on the rule of law, the normative state is about creating expectations
about behaviour that make it possible to hold all citizens accountable for what
the law requires. This accountability is essential to maintaining the integrity
of the normative state.
The
integrity management systems of the criminal justice system value chain, as the
touch point of how lawful or lawless a society becomes, are the first
institutional mechanism which ‘would be rulers’ in a prerogative state attack
to usher in a regime characterised by anarchy. The inconvenient truth is that the
domain of state anarchy is in its elite sections of society and can easily
become a political economy whose codification survives commensurate with how
the cognitive legal elite collude. The inseparability of the ethical leadership
quotient of society with its appetite for anarchy and prerogative state
formation has been found to have underpinned such conditions in most crisis,
fragile, and failed states.
Whilst
the post-May 2004 government of national unity has heightened sensitivity to
the rising dictatorship of the criminal underworld, it has not decisively dealt
with its political elite origins. With interests accepted as the currency of
politics, the depth of lawlessness in society might be at levels where South
Africa already operates in a dual state. Those who can buy their way to survive
the engulfing anarchy will live in their tailored normative state, including gating
in themselves, privately schooling their children, private health themselves,
and similar acts. They can afford to be off the social grid for the
sustainability of their elite lives.
In
the post-liberation state that South Africa is, the normative aspects of the
then apartheid state, some of which, when stripped of their profoundly racist
character, could have sustained the strong state capacity and capability the
cardinal human freedoms centric new post-1994 South Africa became. To eliminate
the enforcement ethos that characterised the pre-1994 state, the post-1994
state might have tempered with practical norms that had become common state
practice over time. In the resulting law and norms enforcement vacuum, the
prerogative state rulers created a political economy-driven practice within
which the country might be entrapped.
The depth of functional decay penetrated state organs to such an
extent that the future of Government, where it exists, is now questioned. Where
it is absent (like in Stilfontein, Pilgrims Rest, Hillbrow in Joburg, Sunnyside
in Tshwane, and many other occupied spaces), a ‘if you can't fix it, ignore it’
syndrome operates. The institutionalizing dualism has developed normative and
prerogative state antagonism, which has become mutually destructive.
This might be unheard of in RSA, albeit rife, where those in the
prerogative state come from, and it was not supposed to have happened. By
leaving this state of affairs to linger for too long, the government had become
an enemy to itself, as it had political power but was devoid of governing
capabilities; this condition signifies the onset of a “failed state” in overall
terms but has created pockets of an inarguable “failed state” lived experience.
In locations where the normative state has ‘failed’, the prerogative and
anarchy manufacturing state, undergirded by an underworld political economy and
hierarchies, has taken over. CUT!!!
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