Friday 20 January 2012, SANDU Head Office, Pretoria:

SANDU has noted recent concerns expressed by legal experts in the media on the deployment of soldiers in civilian areas and the possible unlawfulness thereof.

The explanation provided by the Department of Defence which sought to justify the legality of these deployments based on a decade old open ended proclamation, by a president not even currently in office, begs belief. This dubious explanation only serves to strengthen the concerns already raised.

The last thing that is needed is that the South African public get the notion that soldiers deployed in civilian areas, to do what is essentially police work, is an acceptable norm and way of governance or that soldiers are deployable without stringent regard for constitutional imperatives.  SANDU has consulted its legal team on this issue and is convinced that the current deployments, if based on the reasons offered by the Department, are in all probability authorized in contravention of the Constitution and thus unlawful.

It is not SANDU’s place to direct , criticize or opine on operations conducted by the SANDF per se. The only concern it has as a Military Trade Union is that soldiers, if indeed unlawfully deployed, are at risk of attracting legal liability which they would normally escape were the deployments lawful. It is further of general concern that apparently disregard for the Constitution is considered acceptable in certain circumstances. This goes against the very substance of SANDU as an organization which has always fought for the constitutional rights of its members.

In view of the above facts SANDU has decided to urgently submit a complaint to the office of the Public Protector in order to have a pronouncement made on the legality of the deployments on the basis offered by the Department itself.

(JG GREEFF)

 NATIONAL SECRETARY: SANDU

 Enquiries: 082 573 0082

MEDIA STATEMENT ON THE PASSING OF JUDGE PRESIDENT FIKILE BAM 

19 December 2011

Chief Justice of the Republic of South Africa Chief Justice Mogoeng Mogoeng today expressed his deep sadness at the passing of Land Claims Court Judge President Fikile Bam at the weekend; following a long battle with cancer.

Paying tribute to Judge President Bam, Chief Justice Mogoeng said: “Judge President Bam’s passing marks the end of an illustrious legal career that was characterised by a selfless and tireless service in the defence of the marginalised in the country.

“As the Judicial Community we have lost not only a colleague and a friend; but one of the most widely respected leaders in the legal fraternity who left an indelible mark in our quest to right the wrongs of the past in relation to land restitution.

“Indeed, his scholarly prowess was unparalleled. On behalf of the South African Judiciary; may I take this opportunity to offer my sincerest condolences to his wife Xoliswa, his children and grandchildren and may they find strength during these trying times,” said Chief Justice Mogoeng.

At the time of his passing, ‘Bro Fiks’ – as he was affectionately known – had served as the Judge President of the Land Claims Court for 15 years – the longest serving judicial officer in this capacity.

“The national leadership of the Judiciary will sorely miss his sharp intellect, maturity and wealth of experience together with his calmness and rich sense of humour. Bro Fiks was a personification of an in-exhaustible fountain of diplomacy and a well of wisdom from which the leadership of the Judiciary always drew when faced with serious national issues.

“His departure has left a vacuum at the Land Claims Court and especially in the forum of Heads of Courts which will be difficult to fill,” added Chief Justice Mogoeng.

Born In Tsolo in the Eastern Cape on 18 July 1937; Judge President Bam graduated with a BA (law) degree from the University of Cape Town in 1960 after which he went on to obtain the B Proc and LLB degrees from the University of South Africa in the mid 70s.

He was admitted as an attorney of the Republic of South Africa and the Supreme Court of Transkei in 1978. A tireless human rights activist, Judge President Bam was also imprisoned at various times in his life and spent time on Robben Island between 1965 and 1975. He joined the Johannesburg Bar Council in 1979 and was deported to the Transkei where he practiced as an advocate between 1980 and 1985.

In September 1985 he was appointed as a Director of the newly established Legal Resources Centre in Port Elizabeth and was subsequently admitted as an Advocate of the Supreme Court of South Africa in November 1985.

He sat on the Goldstone Commission during 1992 and 1993 and became a partner at Deneys Reitz, one of the biggest law firms in the country, between March 1994 and December 1995 where he concentrated on constitutional law litigation. He was also appointed as a member of the first democratic SABC Board in 1993.

Ends.

by

Freedom Under Law and the Bingham Centre for the Rule of Law

The South African Constitution is a model to the world in its endorsement of the rule of law.  The core principle is that no one is above the law, as interpreted by a judiciary that is independent of government influence.  It is also one of the first constitutions in the world to include the right of access to information, in order to promote the accountability of government to the public it serves.

Our two organisations, committed to the rule of law as a fundamental democratic value, have been shocked by a series of recent proposals which threaten a u-turn in South Africa, away from the rule of law and in the direction of the authoritarian attitudes of the past.  In particular, the Protection of State Information Bill will curtail openness of the exercise of public power, make it more difficult to combat corruption, and will reduce governmental accountability and fair sentencing in trials. 

In addition, we are deeply concerned at the commissioning by the Cabinet of “research” to test whether the courts are pursuing goals such as “transformation”.  This kind of inquiry, dressed up as an objective and innocent investigation, is completely unjustified.  In the context of recent attacks on the judiciary for holding against the executive, it clearly masks an expectation that the courts should bow to the policies of the government of the day.  Such a blatant misconception of the independent role of the courts was also shown recently in the support of the South African government for the suspension of the SADC Tribunal after it acted independently by holding against the government of Zimbabwe.

It is tragic that South Africa’s record as a beacon of democracy and the rule of law is being tarnished by these acts. We trust that these retrogressive measures will be rethought and withdrawn.

Justice Johann Kriegler, Chairman of the Board of Directors, Freedom Under Law, Johannesburg

Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre for the Rule of Law, London

4 December 2011

Contact inquiries: Prof Hugh Corder

                             Hugh.Corder@uct.ac.za

                             082 337 3317

 THE INDEPENDENCE OF THE JUDICIARY

The statement issued by Cabinet on 24 November 2011 (Cabinet Statement) setting out its views on the transformation of the judiciary correctly identifies three fundamental areas that require public deliberation and action.

The areas of public interest identified are access to justice for the majority of people, continued transformation of the judiciary and “the regular monitoring of the implementation of … court decisions by all State Departments.”

These sound objectives are duties imposed by the Constitution as the supreme law governing all law and conduct in our country. However, at this point we wish to engage the worrying aspects of the Cabinet Statement.

INDEPENDENCE OF THE JUDICIARY, SUPREMACY OF THE CONSTITUTION AND CO-OPERATIVE

GOVERNANCE

1. In its statement Cabinet wrote that it “affirm[s] the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realise transformation goals envisaged by the Constitution.” In our view this reasoning confuses the separation of powers, co-operative governance and judicial independence. 

2. Section 165 of the Constitution holds that the “courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

3. The Constitution also holds that co-operative governance means that in “the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.” The Courts, which are empowered to adjudicate any dispute between different levels of government, are neither “interdependent” nor required to “interface” with government. This would undermine real and perceived judicial independence.

4. Hearings and judgments of the Courts are public and their reasoning subject to scrutiny and appeal.

5. The Constitutional Court has the final power to determine the constitutionality of the conduct of individuals, corporations, and the executive, including the President. This power is also exercised over the laws passed by Parliament.

6. The Courts do not have an army, a police force or an independent tax base with which to enforce their own decisions. Their only source of power comes from the Constitution. The Courts speak only through their judgments, and are often unable to respond fully to “assessment” and criticism of their decisions. Therefore, the promotion, by the state, of the independence and integrity of the judiciary is a prerequisite for a society based on “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”

7. It is also appropriate for the executive to take steps to analyse and interrogate the decisions of the Courts, especially when it does not agree with them. Nevertheless, all court decisions must be implemented.

8. We recognise the need for individuals and organisations to critically evaluate the performance of any institution charged with realising the objects of the Constitution. This manifestly includes the courts generally and the Constitutional Court in particular.

9. However it is incorrect for the executive to commission an overall “assessment” of the decisions of the Constitutional Court. This may be interpreted as an attempt to intimidate the Court, especially given the Court’s record of holding government to account. It would equally be constitutionally impermissible for the Constitutional Court to order an overall “assessment” of government decisions, laws and policies. This would violate the separation of powers.

10. The Constitutional Court has a vital role to play in the social transformation of South Africa, through the Constitution and the Rule of Law. At its best it advances the rights of the poor and the marginalised in society. Judicial independence is essential to maintaining this potential.

11. We call on Cabinet to clarify its statement and provide detail as to why an assessment of the Constitutional Court’s decisions is now required.

Centre for Applied Legal Studies, University of the Witwatersrand (CALS)

Centre for Human Rights, University of Pretoria (CHR)

Equal Education (EE)

Human Rights Institute of South Africa (HURISA)

Institute for Security Studies (ISS)

Law, Race and Gender Unit at University of Cape Town (LRGU)

Lawyers for Human Rights (LHR)

Legal Resources Centre (LRC)

Ndifuna Ukwazi (NU)

Open Democracy Advice Centre (ODAC)

Right to Know Campaign (R2K)

SECTION27

Social Justice Coalition (SJC)

Socio-Economic Rights Institute (SERI)

Southern Africa Litigation Centre (SALC)

Students for Law and Social Justice (SLSJ)

Tshwaranang Legal Advocacy Centre (TLAC)

Treatment Action Campaign (TAC)

Women’s Legal Centre (WLC)

[ENDS]

]]> http://constitutionallyspeaking.co.za/casac-statement-on-menzi-simelane-ruling-of-sca/feed/ 4 http://constitutionallyspeaking.co.za/nigerian-senate-votes-for-draconian-anti-gay-law/ http://constitutionallyspeaking.co.za/nigerian-senate-votes-for-draconian-anti-gay-law/#comments Wed, 30 Nov 2011 13:25:36 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=5166 Nigerian Senate votes for draconian anti-gay law – Same-sex marriage and civil unions to be banned

14 years jail for participants, 10 years jail for helpers & witnesses

Gay advocacy groups & same-sex public affection to be outlawed

Sweeping criminalisation contravenes Article 42 of the Nigerian constitution

London – 30 November 2011

The Nigerian Senate voted on Tuesday 29 November to criminalise same-sex marriages and civil unions, with penalties of up to 14 years jail for participants and 10 years jail for anyone who helps or witnesses such a marriage or union.

In addition, the scope of the bill has been dramatically widened. It now also criminalises gay organisations and advocacy groups, and public expressions of same-sex affection. These newly added offences carry a maximum penalty of 10 years imprisonment.

The bill has been sent to the House of Representatives for approval. If it is passed there, and secures the President’s signature, it will become law.

See this Reuters report:
http://af.reuters.com/article/topNews/idAFJOE7AS0D520111129

According to Reuters, the bill states:

“Persons who entered into a same-sex marriage contract or civil union commit an offence and are each liable on conviction to a term of 14 years in prison….

“Any person who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.”

Commenting on the bill, Yemisi Ilesanmi, the Nigerian bisexual coordinator of the campaign group, Nigerian LGBTIs in the Diaspora Against Anti-Same-Sex Laws, said:

“This legislation is a clear attempt to crush the lesbian, gay, bisexual, transgender and inter-sex (LGBTI) community in Nigeria. The further criminalisation of same-sex relations is hateful and a violation of human rights.

“The bill will jail Nigerians who participate in LGBTI organisations and will make human rights advocacy by LGBTI groups impossible.

“The new penalties for same-sex marriage are more than double what the bill originally demanded. The previous penalty of three years jail for same-sex couples who get married has been raised to 14 years. For witnesses and facilitators of such marriages the maximum jail term has been increased from five to 10 years. The decision to so substantially increase the punishments is particularly abhorrent.

“It is shameful that many Nigerian senators are so myopic that they compared homosexuality to paedophilia during the voting on the bill.

“The action of further criminalising an oppressed minority because of their sexual orientation is indeed an outrage, a gross violation of human rights. Nigeria is sliding fast into a despotic state.

“The bill aims to further criminalise same-sex relationships. Already, consensual same-sex conduct between adults is a criminal offence carrying up to 14 years imprisonment and in some parts of the country there is the death penalty under Sharia law,” said Ms Ilesanmi.

Davis Mac-Iyalla, the gay campaign director of the Nigerian LGBTIs in the Diaspora Against Anti-Same-Sex Laws, noted:

“The Nigerian senators have today further demonstrated their discrimination and oppression of vulnerable LGBTI Nigerians. I urge human rights activists worldwide to join forces with us to fight the bill.”
 
“This vote demonstrates how the senators are ignorant of human sexuality. They are enforcing their religious beliefs in a secular country. Equality and human rights are for all, including Nigerian LGBTIs,” he said.

Peter Tatchell, Director of the human rights advocacy organisation, the Peter Tatchell Foundation, added:  

“This bill violates the equality and non-discrimination guarantees of Article 42 of the Nigerian Constitution and Articles 2 and 3 of the African Charter on Human and People’s Rights, which Nigeria has signed and pledged to uphold. See more details below.

“There is a good chance that this bill, and Nigeria’s long-standing criminalisation of same-sex relations, can be challenged in the courts. This could be a future option for LGBTI campaigners and human rights defenders.

“The law against homosexuality is not an authentic national law that originated in Nigerian jurisprudence. It was imposed on Nigeria by the British colonial administration in the nineteenth century. Despite Nigeria now being an independent country, this British colonial law has never been repealed.

“Our Nigerian colleagues are still hopeful that they can defeat the bill at the next stage. We stand in solidarity with their struggle for LGBTI equality,” he said.

Additional quotes are available from Nigerian LGBTI activists, Yemisi Ilesanmi
and Davis Mac-Iyalla:

Coordinator – Nigerian LGBT in the Diaspora Against Anti-Same-Sex Laws

Yemisi Ilesanmi
Tel- 07577749875
Email- nanfs2001@yahoo.com

Davis Mac-Iyalla
Tel- 0794 823 7399
Email- maciyalla@yahoo.com

Peter Tatchell: 020 7403 1790
Director, Peter Tatchell Foundation
Email: peter@petertatchellfoundation.org
Website: www.petertatchellfoundation.org

Under the leadership of Hofmeyr the SIU, despite its limited mandate, became one of the key structures in the fight against corruption. We note that Willem Heath has had a close relationship with President Zuma, having acted as an advisor to Zuma when he was being investigated by the erstwhile Scorpions on allegations of corruption. Whilst as head of the SIU he will only investigate matters that are referred to him by the President, his independent judgment will be compromised.

In the light of the Constitutional Court judgment in the Glenister case calling for an effective independent body to fight corruption, this decision by the President can only serve to weaken the states capacity to tackle corruption.

This appointment marks another step in the process of rewarding individuals, whose independence has been compromised, dating back to the appointment of Menzi Simelane as the National Director of Public Prosecutions.

Our country needs a robust, fearless criminal justice sector in order to deal effectively with crime and corruption. This move by the President is a set-back in that quest.

ENDS

Enquries:

Lawson Naidoo – 073 158 5736

Masutane Modjadji – 076 9370825

In the main, this assessment is three fold: firstly, to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables. Secondly, access to justice on all levels of the courts from lower courts through to Constitutional Courts. Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution.

Cabinet agreed to the following approach to the transformation of the judicial system:

• That the assessment of the decisions of the Constitutional Court be undertaken by a research institution to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law.
• The Judicial Education Institute be used as a vehicle for transformation through aspirant and serving judicial officers may acquire the requisite legal skills to contribute to the evolving local and global constitutional jurisprudence;
• Measures be taken to enhance the efficiency and the integrity of the Judicial Service Commission and the Magistrates Commission in the execution of their Constitutional mandate of facilitating the racial, gender and other Constitutional prescripts in the judiciary.
• An appropriate framework be established for the regular monitoring of the implementation of the court decisions by all State Departments.
• The mandates and compositions of the South African Law Reform Commission and the Rules Board of Law to be reviewed with a view to enhance the research capacity of the State to be able to lead transformation in the fields that have greater impact on the lives of the people, such as socio-economic transformation, land reform, mining, aviation and many more.
• Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

23 November 2011

The Council for the Advancement of the South African Constitution (CASAC) remains concerned about aspects of the Protection of State Information Bill (POSIB) that was passed by the National Assembly yesterday. In particular our concern focuses on the implications of the POSIB for the right to access to information enshrined in section 32 of the Constitution and regulated by the Promotion of Access to Information Act.

Many ordinary South Africans and a broad range of civil society organisations have demonstrated their vigilance and expressed their reservations about the POSIB. Whilst the National Assembly has so far failed to heed the calls for a revision of the Bill, we hope that the National Council of Provinces will do so.

Should the POSIB be passed in its current form in the National Council of Provinces, we call on President Zuma not to assent to it and instead to exercise his power and responsibilities under section 79 of the Constitution to refer the matter back to the National Assembly for further consideration. Should the reconsideration by the National Assembly fail to cure the defects in the legislation, we would urge the President to refer the POSIB to the Constitutional Court for a decision on its constitutionality.

This is an important piece of legislation that is necessary to protect legitimate state secrets and to protect the sovereign integrity of our nation. It should not contain elements that undermine the constitutional rights of ordinary people.

Enquiries:

Lawson Naidoo          073 158 5736

Masutane Modjadji   076 937 0825