By Lesirela Letsebe
The democratic South African government has aroused a huge outcry by introducing the Protection of State Information Bill (B6 of 2010), which some media have likened to the ‘draconian’ apartheid era Internal Security Act 74 of 1982 with its stated object: ‘To provide for the security of the state and the maintenance of law and order; and to provide for matters connected therewith.’
According to the City Press newspaper, critics have argued that the Bill has no public interest clause and, if passed and implemented, will give the government wide-ranging powers to contain information it does not want in the public domain (see C du Plessis ‘Room for change in Secrecy Bill’ City Press 27-11-2011 at 4). If these criticisms are correct (especially in respect of the non-existence of a public interest clause in the Bill), then the public objection is squarely justified. In this regard, former Constitutional Court Judge Albie Sachs would have been vindicated in his observations that:
‘There is no guarantee that somebody who is a freedom fighter, who is willing to sacrifice his life for freedom, will not violate the rights of others when he takes over power’ (A Sachs ‘The politics of accommodation: Constitution-making in South Africa’ Occasional Paper 3 (National Democratic Institute for International Affairs, July 1998) at 13).
The preamble to the Constitution reads in part:
‘We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for injustice and freedom in our land;
. . . .
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic … .’
Through the Constitution, South Africa has declared itself, inter alia, a democratic country founded on the supremacy of the Constitution and the rule of law, and committed itself to spearhead the fulfilment of the obligations imposed by it.
Among the constitutional obligations it committed itself to help fulfil is the right under s 16, the right to freedom of expression, which includes freedom of the press and other media, and freedom to receive or impart information or ideas. The exercise of this right is subject to limitations in that he who exercises it must not do so as propaganda for war; to incite imminent violence or to advocate hatred that is based on race, ethnicity, gender or religion and in a manner that constitutes incitement to cause harm. Any other limitation would have to be justified under s 36 of the Constitution. Section 2 of the Constitution provides that any law or conduct that is inconsistent with the Constitution is invalid. That being the case, in order to pass the constitutionality test, a draft law in the form of the Protection of State Information Bill, apart from showing that it is a law of general application, must also show that its limitation of the right to freedom of expression is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –
Section 36(2), read with s 16(2) of the Constitution (freedom of expression clause), provides that ‘no law may limit any right entrenched in the Bill of Rights’ other than as provided for under the limitation clause. Therefore, if the Protection of State Information Bill cannot be justified in terms of the limitations to the right to freedom of expression provided for under s 16(2) or s 36(2) but is passed as law, all concerned and offended would prima facie have a successful court case against the democratic government on that basis. Section 80 of the Constitution provides that: ‘Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of parliament is unconstitutional, that such application to the court must be supported by at least one third of the members of the National Assembly, and must be made within 30 days of the date on which the President assented to and signed the Act.’
The Constitutional Court may, after receiving such an application, order that all or part of the challenged Act has no force until it has decided the application. It would only suspend the operation of the Act if the interests of justice require so, and if it is satisfied that the application challenging the constitutionality of the Act has reasonable prospects of success.
Iol News, on 25 November 2011, reported that the Democratic Alliance’s (DA’s) parliamentary leader, Lindiwe Mazibuko, would be lobbying opposition members of parliament to make an application to the Constitutional Court in terms of s 80(1) of the Constitution and that they would need 134 signatures in order to do so (B Jooste ‘DA to e-mobilise against Info Bill’ www.iol.co.za, accessed 3-2-2012). This accords with the constitutional provisions outlined above.
Civil society organisations and the media have registered their discontent with the Bill in its current form and the main opposition party, the DA, has reportedly threatened to exercise its rights under the supreme law of the land to challenge the constitutionality of the Bill if passed and signed into law by the President. African National Congress members of parliament Ben Turok and Gloria Borman reportedly did not vote in favour of the Bill and, in so doing, reportedly violated their mandate as delegates of the party. They defied the instructions of their employer and will thus face consequences. It is, however, assuring that trade union confederation the Congress of South African Trade Unions has openly expressed its opposition to the Bill – its is a courage that should inspire and strengthen the teenage democracy that our country is. Justice Albie Sachs once observed:
‘Courage does not always mean to confront the enemy, the torturers, bravely. Sometimes we need courage to confront our own comrades, our colleagues, our “maninos”, whether this be in the Constitutional Court or in politics or in struggle’ (A Sachs (op cit)).
It would be the failure of comrades not to express their concerns and reservations on issues that are knowingly dear to our democratic society and which, if not challenged at their early stages, could see this teenage democracy drifting back to draconian era-like apartheid systems. That would, in my view, be tantamount to the freedom fighter crossing the floor and occupying the draconian space.
Lesirela Letsebe BIur LLB (University of the North) LLM (UP) is an attorney at Lawyers for Human Rights at the Stellenbosch Law Clinic.
This article was first published in De Rebus in 2012 (March) DR 56.
