Understanding the Dual Nature of ANC's Crime Policy and Its Constitutional Implications

In South Africa, the crime policy landscape is undergoing nuanced transformations under the governance of the African National Congress (ANC). The ANC's approach outlines a complex interplay between decriminalization initiatives and the continuous development of new punitive statutes, highlighting a duality in the government's handling of criminal justice.

The hesitance-turned-legislative action towards decriminalizing recreational marijuana use, the back-and-forth over decriminalizing sex work, and the abolition of criminal defamation marked shifts in ANC's traditional opposition to deregulation. But the ANC's openness to decriminalize specific conduct does not overshadow its eagerness to broaden the scope of criminalization through new legislation, a mechanism that onlookers argue could be better deployed towards tackling the persistent problem of violent crime in the country.

The South African Constitution in Section 12(1)(c) enshrines the right of its people to be free from violence, be it private or from the state itself. This clause requires digging into the philosophically rooted understanding that the state's inherent violence, exerted through coercion, needs constraining to prevent the government from becoming a perpetrator rather than a protector.

Substantiating this need is the basic social contract theory—the cornerstone of state existence—which posits that a state should only use violence as a response to coercion, whether from foreign or domestic threats. Yet, there exist several South African laws that the ANC has not addressed, which criminalize non-coercive conduct, indicating that the state acts as the initiator of violence rather than its mitigator. This situation undermines the constitutional freedom from public violence and betrays the principles of civil liberty.

Despite the contours of progress, the ANC maintains a myriad of broadly defined laws that effectively allow the significant discretional silencing of government critics under the veneer of maintaining law and order. With the population largely unaware of these multifarious little-known regulations, many could be unwittingly placed at the mercy of government discretion.

The clarion call for decriminalization is not just a matter of policy reformation but a constitutional imperative that seeks to refurbish the relationship between the state and its citizens, moving away from coercion and towards the affirmation of civil liberties enshrined by the South African rule of law.