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South Africa’s adherence to the rule of law is slipping away slowly. This is according to the 2024 Rule of Law index, released annually by the World Justice Project.
The rule of law, fundamentally, is the principle that the law applies to everyone in equal measure, and nobody is above the law. The UN elaborates further, saying the rule of law is when “all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”.
The UN adds that: “It is foundational to people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state. Rule of law and development are strongly interlinked.”
However, says WJP, a majority of countries are regressing in this respect, owing in part to executive overreach, diminished human rights, and justice systems that are failing to meet people’s needs. This is the seventh consecutive year where overall regression is seen.
“The long-term implications are troubling. Between 2016 and 2024, people in 81% of countries have lost protections for their fundamental rights. Additionally, 77% of countries show a weakening in governmental checks and balances, including oversight by legislatures, courts, civil society, and the media.”
Over 6-billion people now live in countries where rule of law is weaker than it was in 2016, and where leaders are consolidating their authority. “This has grave implications for individual freedoms, government accountability, and people’s ability to choose their leaders through free and fair elections.”
Despite this worrying trend, says WJP, a smaller majority of countries experienced overall rule of law declines this year (57%) compared to the last two years (59% and 61%).
Download the 2024 index.
Download South Africa’s information for 2024.
How is the Rule of Law index compiled?
The index is based on four universal principles:
- Accountability – the government as well as private actors are accountable under the law.
- Just Law – the law is clear, publicised, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.
- Open Government – the processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient.
- Accessible and Impartial Justice – timely justice is delivered by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
This year’s report is drawn from global surveys of more than 214 000 households and 3 500 legal practitioners and experts, in 142 countries and jurisdictions. It calculates scores and ranks according to eight factors:
- Constraints on Government Powers,
- Absence of Corruption,
- Open Government,
- Fundamental Rights,
- Order and Security,
- Regulatory Enforcement,
- Civil Justice, and
- Criminal Justice.
The first four factors measure whether the law imposes limits on the exercise of power by the state and its agents, and also on individuals and private entities. The last four factors measure whether the state imposes limits on the actions of members of society and fulfils its basic duties towards the people by serving public interest, protecting people from violence, and providing access for everyone to grievance and dispute settlement mechanisms.
These eight factors are further divided into 44 specific sub-factors. Scores are mathematically adjusted so that all values fall between 0 (weakest adherence to the rule of law) and 1 (strongest adherence to the rule of law).
Before releasing the report, data is validated and cross-checked against qualitative and quantitative third-party sources to provide an additional layer of analysis and to identify possible mistakes or inconsistencies.
The 2024 index shows regression, with an accompanying rise in authoritarianism, in two indicators particularly – Fundamental Rights and Constraints on Government Powers. These are driven in the first instance by declines in freedom of opinion and expression, freedom of assembly and association, and freedom from arbitrary interference of privacy, and in the second by deteriorations in non-governmental checks, limits by the legislature, and limits by the judiciary.
“These trends capture the most common rule of law challenges in 2024,” says WJP. ” Of the 57% of countries that experienced a deterioration in rule of law this year, at least 78% declined in each of these three indicators.”
South Africa continuing a slow decline
South Africans are among the 6-billion who live where the rule of law is steadily diminishing. Its decline continues a trend that started in 2020 with the score at 0.59, which has dropped every year since then to where it is now at 0.56. On the index’s scale of 0 to 1, this is the equivalent of a four percentage point decrease. In terms of ranking, South Africa’s overall global rank is 57 out of 142, and its overall regional rank is 5 out of 34.
The country also now sits 0.02 points – or 2% – lower than it was when it debuted on the index in 2015. Like the Corruption Perceptions Index, where South Africa has languished with a score fluctuating between 41 and 45 and no overall improvement since 2012, the Rule of Law index shows up the country’s persistent failure to successfully promote adherence to the law, and achieve correct and just development, enforcement, and delivery of the law.
South Africa’s best performance is in Fundamental Rights (0.63), where it outscores the global average of 0.56, followed by Constraints of Government Powers and Open Government at 0.61 each. South Africa is not among the 63% of countries where Fundamental Rights fell in the past year, but it is among the 59% of countries where Constraints on Government Powers fell over that period.
The country further scores 0.60 for Order and Security, 0.51 for Regulatory Enforcement, 0.58 for Civil Justice, and 0.50 for Criminal Justice.
Predictably, Absence of Corruption is South Africa’s weakest area by far. For this factor the country scores just 0.46, below the global average of 0.51 but above the regional average of 0.38. Like the overall score, this continues a trend of decline which began in 2016 when the country scored its best of 0.55, falling to 0.53 in 2017/2018 and then sharply to 0.48 in 2019.
Absence of Corruption is divided into four sub-factors:
- Government officials in the executive branch do not use public office for private gain – score 0.36, lower than the regional score of 0.38 and the global average of 0.50.
- Government officials in the judicial branch do not use public office for private gain – score 0.71, higher than both the regional average of 0.46 and the global average of 0.61.
- Government officials in the police and the military do not use public office for private gain – score 0.56, higher than the regional average of 0.41 but under the global average of 0.59.
- Government officials in the legislative branch do not use public office for private gain – score 0.22, lower than both the regional rank of 0.28 and the global average of 0.35.
These scores would seem to indicate that officials in the legislative branch are viewed as the most corrupt, followed by those in the executive branch and the police and military respectively, with the judicial arm showing a far greater absence of corruption than its three predecessors.
Generally, South Africa fares better than some big economies around the world, notably its Brics partners Brazil and India (each with a score of 0.50), China (0.47), and Russia (0.43) – but none of these scores are particularly stellar to begin with.
Swift action needed
It is important that the world acts swiftly to address the rule of law decline, notes WJP, because data suggests the global recession is slowing and progress is possible.
Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small, adds the organisation. “It underpins development, accountable government, and respect for fundamental rights, and it is the foundation for communities of justice, health, opportunity, and peace.”
Although we may not be aware of it, the rule of law is profoundly important – and not just for lawyers or judges. Every sector of society is a stakeholder in the rule of law, because it affects all of us in our everyday lives, says WJP.
