ANC’s crime policy: Challenges of decriminalisation – Martin van Staden - Biznews

The African National Congress (ANC) government has shown a nuanced stance on crime policy, reluctantly decriminalising marijuana and moving towards decriminalising sex work. However, it continues to expand new criminal offenses. The Constitution mandates freedom from all forms of violence, emphasising limits on state coercion and a need for broader decriminalization to uphold civil liberties.

Martin van Staden

In recent years, the African National Congress (ANC) government has shown itself to be not entirely unreasonable in crime policy.

It has reluctantly decriminalised the use of recreational marijuana under the guidance of the courts, set in motion the decriminalisation of sex work, and abolished the archaic offence of criminal defamation.

That the ANC is open to some decriminalisation is welcome, because it is completely opposed to the deregulation of virtually anything and everything else.

However, we dare not ignore the fact that the ANC government is also an eager criminaliser, routinely adopting legislation and regulations that create entirely new criminal offences. And, of course, the ANC government’s failure to rein in real, violent crime must not be forgotten.

Let us leave aside for a moment that the ANC is itself a conduit for criminality, which I do not think will change even under the much vaunted ‘Government of National Unity’.

The Constitution
Section 12(1)(c) of the Constitution provides that everyone has the right to be free from all forms of violence, both private and public.

Speed-reading that provision would tend not to cause any deeper thought. ‘Yeah, yeah, we have the right to be safe’, is the thought that might come to mind.

But take a moment to truly consider what is being said. To my knowledge, no provision like this exists in any of the other notable written constitutions of the world.

That everyone has a right to be free from private violence speaks for itself. We have a right against crime that harms our vital interests. This is the basic raison d’être of the state itself and encapsulates the so-called ‘social contract’.

But everyone also has a right to be free from public violence. What could this mean?

State coercion
It is well understood in political science that the state is violent itself – to the extent that coercion is included in the very definition of the state. The state is established violently, and it is maintained violently. There is nothing about the state that is not coloured by the institution’s aggressive nature.

You may choose to cease paying for services you receive from a private entity, resulting in those services being discontinued; but if you cease paying taxes, your state services will not simply be discontinued. Your ultimate options will, simply, be this: you are either to be imprisoned, or killed while resisting imprisonment.

There is nothing voluntary or peaceful about the state.

This is useful.

Violence is an inseparable part of human nature. Having an institution that is above all dedicated to minimising this violence is therefore essential, because violent force that has been initiated can only be minimised with violence.

Despite the usefulness of having an institution dedicated to this crucial social function, the obvious danger is that the state, being a violent institution, itself becomes the violent problem rather than its solution. That is why it is a necessity that the state be a legally limited institution.

Constitutional imperative to decriminalise
The state must be limited to using its coercive power only in answer to coercion – whether coercion by a foreign power, or domestic criminal elements.

In all other respects, the Constitution tells us, everyone has the right to be free from public violence. (This right may be limited according to a strict constitutional formula.)

What is this, other than a clear and unequivocal constitutional requirement for the South African government to decriminalise non-coercive conduct?

If the state, for example, imprisons someone for ‘inconveniencing a fellow passenger’ on public transport (this is in fact a crime in South Africa), it has not utilised its coercive power in answer to coercion. It has, itself, become the coercer. It is, under those circumstances, initiating violence against people who have a constitutional right to be free of it.

That the ANC has shown itself conceptually open to decriminalisation over the years is welcome.

It has accepted the Constitutional Court’s instruction to decriminalise the recreational use of marijuana, even though this was not at the ANC’s initiative. The ANC government did, however, take the initiative in beginning the process of decriminalising sex work, although it has now backtracked somewhat. Most recently, it (finally) decriminalised so-called criminal defamation.

Overcriminalised
The state always has an incentive to legally criminalise as much as it can.

With the moral and ideological dominance of the form (and not necessarily substance) of the rule of law around most of the world, governments now do not wish to appear arbitrary or despotic. The state still, of course, has its enemies, and it still wants to keep its options open about ensuring those enemies are silenced.

Widespread criminalisation enables the state – under the cover of the ‘rule of law’ – to victimise anyone at will. Rather than seeming arbitrary or despotic, on the surface the state simply appears to be ensuring the maintenance of ‘law and order’ and creating a ‘law-abiding’ society.

South Africa now has a series of laws and regulations that enable government to do this far more directly, but outside of these laws there are hundreds – perhaps thousands – of laws on the book that in theory allow government to imprison almost anyone.

Most of the people reading this column right now have almost certainly committed a crime – without knowing it – within the last few months. Whether the state flexes its muscle to do something about that is at this stage entirely a matter of discretion.

The South African Constitution’s instruction is clear, however: everyone within the jurisdiction of the Republic is to be free from all forms of violence, both private and public. It is about time that we started making a fuss about this imperative and claiming the civil liberty to which we are entitled.

Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR)

https://www.biznews.com/rational-perspective/2024/07/11/anc-crime-policy-decriminalisation-martin-van-staden

This article was first published on the Daily Friend.