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Menings | Opinion > SeminaarKamer | Seminar Room > English > Essays

Is an open constitutional democracy a threat to security, or rather political expedience?

Cobus Fourie - 2010-08-31

The current furore over the Protection of Information Bill and the Media Appeals Tribunal has fundamental and seemingly overlapping human rights issues at heart: the right to privacy and dignity coupled with the State’s interest in supposed national security and the right to freedom of expression and freedom of the press.

The apparatchiks and cadres at the ANC are quite indignant at what they claim the unscrupulous, paparazzi-esque harassment and stalking of esteemed members of parliament, ministers and other office-bearers and tenderpreneurs. They contend that their rights to dignity and privacy are being desecrated.

Let us not forget that the media played a pivotal role in exposing government incompetence, mismanagement, irregularities and fraud, all of which made the apparatchiks look bad. And apparatchiks with a predilection for totalitarianism do not take humiliation and accountability very well.

A knee-jerk reaction followed in the guise of the Protection of Information Bill and the mooted Media Appeals Tribunal. One can almost smell the self-righteous bitterness all the way from Cape Town.

But the Constitution of the Republic of South Africa’s Bill of Rights also guarantees the right to freedom of speech and a free press. At the intersection of these seemingly conflicting and overlapping rights the vicious debate commenced.

So much has been written about the draconian Protection of Information Bill and Media Appeals Tribunal that for me to weigh in on that subject would be superfluous. Instead I will focus on some layman’s constitutional jurisprudence.

The US Ambassador to South Africa, Donald Gips, also weighed in on the contentious issues facing South Africa at the moment. Gips is quoted in PoliticsWeb:

In the early days of America, our third president Thomas Jefferson said, "Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it." In the darkest days of South Africa, the press was a leading light that helped expose the acts of the apartheid regime.

The US ambassador to South Africa also said that he heard the word tenderpreneur for the first time in South Africa. Methinks our penchant for making up words for creative opportunism caught his attention.

Where else would such a neologism be conjured up? I thought. Very few supposedly open, constitutional democracies display the unrestrained duplicity, corruption and nepotism we almost take for granted here. If government gets its way this will most probably be the last time I am allowed to write about government malfeasance or even produce postulations and create “unpatriotic” hypotheses.

As with all things political there is a history pertaining to the current ruckus. 1994 heralded in the miracle that was the new rainbow nation (a term ascribed to the most venerable Archbishop Emeritus Desmond Tutu). After Nelson Mandela, arguably the world’s most liked statesman, stepped down, things slowly went pear-shaped.

The media grew critical of government shortly after the rainbow nation miracle-honeymoon, circa 1999 – and many a time it exposed very embarrassing actions of office-bearers. Sometimes the media highlighted pure, unadulterated hypocrisy and sometimes the wanton abuse of power, wasteful expenditure and the gross mismanagement and theft of taxpayers’ money. This was obviously not a pleasant experience for those who hold sway over the laws of the land.

Granted, government, essentially, tried to better the lives of ordinary citizens and with every exposé some degree of resentment set in. Mama Winnie famously said at the OR Tambo International Airport during the Caster Semenya saga: "We know your responsibility is to inform us, but do so patriotically without insulting one of our own. Use the freedom of press we gave you properly, because we can take it from you."

Some commentators saw in that statement the foreboding of what is emerging, while others just shrugged it off – in retrospect it seems to be rather safer to err on the side of caution.

I have personally been subject to invasion of privacy, albeit my subjective evaluation, and mockery at the hands of one of the newspaper groups, and I felt violated – I would be lying if I said I was completely unscathed. I realised, though, that just as unfair as I saw the petty article, the point was that it was petty and an attempt to defend the indefensible. I could have thrown my weight behind the ANC to gag the press and fine and jail journalists, but then again I am a journalist myself and the right to freedom of speech and a free press trumps any insignificant dents made to my non-existent public image and seemingly fragile sense of pride.

I am, though, not sanctioning impunity because malice exists in every industry and journalists should be held accountable like any private person. Then again – if you decide to venture into public life you are relinquishing your right to complete privacy because the consequences of your actions might affect citizens and your comings and goings might be in the public interest.

And here is where the adjudication of conflicting interests and rights come into play. Justice Albie Sachs in his capacity as former judge of the Constitutional Court explains the raison d’être of constitutional litigation in The Strange Alchemy of Life and Law

I came to see most of the work on my Court as involving claims between right and right. We were concerned not so much with classificatory frontiers between the lawful and the unlawful, as with reconciling the diverse interests that inevitably exist in an open and democratic society. In this setting abstract legal reasoning of a dogmatic kind gave way to a form of adjudication in which purpose, context, impact and values took centre-stage. (Sachs 2009:202–3)

Sachs goes on to explain the balancing up of rights and the determination of fairness:

Proportionality, fairness, reasonableness: these were not questions that could be decided purely by grammatical textual analysis and logical inference. In just about every case that came before us, the Constitution obliged us to make value judgments on issues of major social and moral importance. The problem then was not whether to make value judgments, but how to do so in a principled way that was true to the letter and spirit of the Constitution. (Sachs 2009:211)

The essence of the above is that conflicting interests are adjudicated based on proportionality and reasonableness to determine the most fair and constitutional judgment.

Section 14 of the Bill of Rights grants the fundamental right to privacy, and section 10 grants the fundamental right of dignity, while section 16 gave effect to freedom of expression, including freedom of the press and other media, and section 32 gave rise to the right to access to information. These rights are subject to the limitations clause as elaborated on in section 36.

Clearly there is a conflict of interest and rights at play here. And it is not up to politicians to play adjudicators with their inevitable conflicting interests. It is up to the judges of the Constitutional Court, who are well-versed in the concepts of proportionality, reasonableness, fairness, equality and jurisprudence to decide whether the Protection of Information Bill and the Media Appeals Tribunal violate the rights of the citizenry by virtue of their existence. Section 36 (e) makes it clear that where limitations of rights may apply the less restrictive means to achieve the purpose ought to be used.

The draconian and fascist Protection of Information Bill and the threat that is the Media Appeals Tribunal do not properly balance the rights to freedom of expression, including the freedom of the press and the right to access to information with the limitations the State is seeking. Furthermore, the limitation of rights clause (section 36) concludes with the profound statement, which will hopefully sink these fascist initiatives should they ever reach the Constitutional Court: No law may limit any right entrenched in the Bill of Rights.

Whose rights is the state protecting and what information lurks beneath the surface that we ought to be protected against? Are we seeing simple exaggeratedness or rather patent expedience?


Sachs, A. 2009. The Strange Alchemy of Life and Law. New York: Oxford University Press.

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