Constitutional Hill

Who will protect our Parliament against the President and his securocrats?

A press conference held on Tuesday revealed that ANC Chairperson and part time Speaker of the National Assembly (NA), Baleka Mbete, as well as former North West Premier and part time National Council of Provinces (NCOP) Chairperson, Thandi Modise, do not have a good grasp of either the architecture of the Constitution of the Republic of South Africa nor of the rules of Parliament which they are required to enforce impartially (but which they have chosen not to).

It is a little known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.

The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions) and allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.

In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power and hold it accountable, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa. (The Marikana massacre is the most bloody and extreme recent example of this phenomenon.)

The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services with its network of spies and its ability to eavesdrop on the conversations of any citizen.

It also controls an army of civil servants who (in terms of chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.

The problem of abuse of power by the executive is heightened in the South African system in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the President who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.

In reality, at present the President is elected by the just over 4000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.

In order to safeguard our democracy against the dangerous and overweening power of the President and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.

The President is not only elected by the NA, but can also be fired by it. The NA can also fire the cabinet. The NA can fire the President and/or the cabinet at any time for any reason it sees fit.

Section 42(5) of the Constitution empowers the President to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the President and his or her executive because it has the final say on any binding decision it is required to take.

Moreover, the President (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.

This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The President or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.

Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.

Section 56 and 69 further provide the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:

  • summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  • require any person or institution to report to it;
  • compel, in terms of national legislation or the rules and orders, any person or institution to comply with such a summons; and
  • receive petitions, representations or submissions from any interested persons or institutions.

This means the NA or NCOP can at any time summons the President (or any other person) to appear before it. If the President (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the President (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP needs to grant permission before a person is summoned.

(Of course, given the fact that the ANC Chairperson and the President meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the President to the NA.)

As we all know (because the rule was flouted last year) NA rule 111 also requires the President to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she indeed failed to do last year) she is flouting the rules of the institution that she purportedly heads.

Because much of the de facto power resides with the President and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions and hold its own against the potentially repressive actions of the executive, if the Speaker and Chairperson of the NCOP vigilantly protect Parliament from interference by the executive and protect the sanctity of the institution.

When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the President, not at the pleasure of the voters.

It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in section 3 that:

The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:

Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.

Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:

It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.

This means that if the Speaker was being truthful she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and retain control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.

Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.

Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story.

SONA chaos: preliminary legal and strategic points

Your response to the events which occurred around the President’s State of the Nation Address (SONA) last night may well depend on whether you are an EFF supporter, an ANC supporter, or whether you judge events according to the principles of open democracy embodied by our Constitution. In the name of healthy public debate (dream on, I hear you say), I post my first thoughts about the SONA events, which I wrote for my Facebook page. 

It is not good for Parliament or for a democracy when unidentified individuals (who may or may not be police officers or soldiers) use violence to physically remove rowdy elected members of Parliament from the National Assembly Chamber. It seems to me the Speaker, the EFF as well as the unidentified security personnel at best behaved unwisely and at worst in contraventions of the various rules and regulations that govern their conduct.

First, the jamming of the cell phone signal in the House and the alleged involvement of the Department of State Security in jamming the signal (which has not been confirmed or denied) was both outrageous and illegal. It is illegal to scramble a cell phone signal as ICASA regulation (published in Government Gazette 24123, from November 2002) prohibits it. It is also in conflict with provisions of the Constitution, which allows the public and the media access to the proceedings of Parliament and only allows reasonable limitations on it.

If Department of State Security was involved (as suggested by several journalists) it is also a shocking breach of the separation of powers doctrine. The members of the Executive have no business involving themselves in the operation of Parliament. It is like the Director General for Home Affairs taking over the role of the Speaker.

Second, (and this is my personal view) I did not like the fact that the Speaker – employing kragdadigheid tactics which reminded me of a previous era – seemed overeager to call in the security services to have the EFF members removed and “taught a lesson”. It looked as if it was all planned and done according to a script. Using the police to teach political opponents a lesson (or creating the perception that you are doing this) is in conflict with the spirit of a constitutional democracy.

Allowing the EFF to go ahead, suspending the proceedings and demonstrating to all voters that the EFF was not prepared to act in terms of the rules would, in my opinion, have been the constitutionally desirable and politically most astute thing to do. Making martyrs of political opponents, on the other hand, is usually not a winning political strategy.

But was the Speaker legally authorised to send security personnel into the Parliament? Section 4(2) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act states:

When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.

As there was no immediate danger to the life or safety of any person or damage to any property, the section does not apply. However, that is not the end of the matter as section 11 of the Act states:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

A disturbance is defined as: “any act which interferes with or disrupts or which is likely 10 to interfere with or disrupt the proceedings of Parliament or a House or committee”.

If the “person” referred to in section 11 includes any MP and if it is not limited to non-MPs, it would mean that once a disruption takes place, the Speaker can ask security services to enter the Chamber and remove MPs. However, it is not entirely clear whether section 11 covers MPs. The Constitution prohibits the arrest of MPs for anything they say in Parliament, so if section 11 allows for the arrest of MPs it would clearly be unconstitutional.

Further, the Act distinguishes in various places between “person’s” and MPs, which may cast doubt on whether section 11 applies to MPs.

If we assume that section 11 does cover MPs (a court will ultimately have to decide this point), the section must be interpreted narrowly so as to give effect to the provisions of the Constitution, specifically those sections guaranteeing the privileges of MPs and protecting their right to free speech. Section 11 must thus be interpreted to interfere with the free speech of MPs and with their privileges as little as possible, given what meaning the words are reasonably capable of meaning.

This suggests, I would argue, that a disruption which could trigger security force involvement would have to be interpreted to mean a situation where an MP or MPs act in such a way that it clearly renders it impossible for the House to continue with its business. I am not sure raising (what were clearly irrelevant and ill-conceived points of order or challenging the rulings made by the Speaker) rise to the level of a constitutionally valid “disruption”. At some point it may have been the case if the Speaker had allowed the EFF members to continue, but I am not sure it was the case when the Speaker ordered the removal of some EFF MPs.

But this is a legally grey area, so reasonable people may well differ on this until a Court clarifies the matter.

In any case, I am one of the voters who are put off by some of the antics of the EFF. I have no problem with EFF members raising points of order (as they were entitled to do by the rules). However, SONA is about more that Jacob Zuma – it’s about the President and Parliament as a constitutional entities. Continuing to raise points of order after the Speaker made her ruling to disallow it (which she was entitled to do in terms of the rules, even if she struggled to justify this) pushed the boundaries of what we should expect of our elected representatives.

That said, the security forces were authorised by the Speaker (whether validly or not) to remove Floyd Shivambu and Julius Malema from the chamber. As far as I am aware, they were not ordered to remove other EFF MPs from the chamber. These members cannot be collectively punished for what their leaders do (we do not live in Israel) so removing them (without explicit orders of the Speaker) must have been illegal unless somebody life was being threatened and section 4 of the Act would have kicked in.

These are the legal niceties. But there may be a broader point about the quality of our constitutional democracy and the manner in which people in power overreact to challenges to their authority, that come into play here.

If the Speaker had been a wiser person and had suspended proceedings and had said we only proceed once Julius and Floyd leaves the Chamber – all while South Africans waited impatiently for the SONA to proceed – the EFF antics would have started to irritate many voters. I am not sure most voters would continue to have sympathy for actions by MPs that go beyond what (at least arguably) could be justified by the rules of Parliament.

In the end, it is voters (and not the Speaker or security forces) who serve as the ultimate check on MPs and their behaviour. Where MPs realise they are losing the sympathy of the public, they will almost certainly moderate their behaviour (or am I far too optimistic about the level-headed nature of voters and MPs?). Placing more trust in the slow wheels of democracy and in the voters and less in the brutal exercise of militarised state power, would therefore, in my opinion, have been far wiser.

It will very seldom (if ever) be good for democracy to allow police officers to be deployed to suppress the speech of democratically elected members of Parliament. It matters not whether such members represent the majority of voters or a minority.

Yes, it would have been a bother. The President might have had to read his speech from a TV studio or we might have had to wait another 30 minutes for him to read the speech from the Assembly podium. But who said democracy is not sometimes a messy affair? The President is a politician used to the rough and tumble of politics, so surely it is not as if he would have been dealt a mortal blow if the EFF had been given more rope to hang themselves?

This is my initial view. But my view is perhaps less important than the views of the millions of voters who must decide who to vote for ion the upcoming local government and (eventually) national elections.

What do you think?

SONA and the EFF – What is the Speaker authorised to do?

The State of the Nation Address (SONA) – usually no more than a dry, uninspiring and pompous event showcasing the wealth, power and tawdry glamour of South African political elites – has this year taken on a sharply different meaning. This is due to vague threats by the Economic Freedom Fighters (EFF) to disrupt the event. Can the Speaker prevent EFF MP’s from carrying out their threat? If so, what legal basis is there for preventing EFF MP’s from asking the President questions he had failed to answer when he last appeared in Parliament?

Screenshot 2015-02-01 12.32.10

It is unclear why so much attention (and money) is lavished on the President’s State of the Nation Address (SONA) every year. Speeches delivered by politicians seldom have a direct impact on the lives of voters. Speeches do not put food on the table of the hungry or provide shelter from the elements for the homeless.

Perhaps politicians, media elites and the punditocracy pretend that such speeches really matter more than they actually do to bolster their own sense of (self)-importance. They can tell the rest of us that only they have the tools to identify the strengths and weaknesses of the speech and know how the speech will affect our lives.

Although SONA will almost certainly have no effect on the quality of governance in South Africa, we are asked to pretend that it has the potential to change our lives dramatically. I will prefer not to have to pretend that this is true.

Not that the antics of the EFF will have any effect on the quality of our lives either. At most it will provide some bread and circus to amuse an inquisitive public hungry for some entertainment. That is, if Eskom manages to keep the lights on, of course.

But what happens in the joint sitting of Parliament on Thursday will arguably raise significant constitutional questions. Does the Speaker have untrammelled power to make up rules as she goes along? Can the constitutional right of MP’s to freedom of expression in Parliament be limited and if so, can it be done via arbitrary rulings of the Speaker?

In Speaker of the National Assembly v De Lille the Supreme Court of Appeal (SCA) gave some indication that in a Rule of Law based system like ours, the actions of the Speaker have to be guided by legislation and the rules of Parliament. If legislation and the rules of Parliament do not explicitly authorise the Speaker to limit MP’s right to freedom of expression, conventions and habits cannot do so.

The SCA found that the threat that a member of the National Assembly may be suspended for something said in the Assembly inhibits freedom of expression in the Assembly and must therefore adversely affect the guarantee of free expression. Legal rules must therefore be interpreted to detract as little as possible from this right to free expression enjoyed by MP’s in Parliament.

The Constitution does authorise the adoption of national legislation which will itself clearly and specifically articulate the “privileges and the immunities” of MP’s. The question is whether the legislation or rules clearly and specifically authorise the Speaker to prevent MP’s from asking questions or raising points of order when the President delivers the State of the Nation Address.

Section 7 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act prohibits a person from improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions. It also prohibits a person from creating or taking part in any disturbance within the precinct of Parliament while it is meeting.

If it were assumed that the definition of “a person” includes an MP and is not restricted to non-MP’s (something that is far from clear), section 7 would thus prohibit an MP from disrupting Parliamentary processes. An MP would be disrupting a Parliamentary process if he or she causes such a disturbance or disruption in a manner not authorised by the rules of Parliament.

If an MP swears in Parliament, assaults another MP, sings songs in the chamber, reflects on the competence or honour of a judge during a debate or continuously interrupts the Speaker and refuses to follow her lawful orders, he or she would be in breach of the rules and the Speaker would have every right to order the MP to leave the House.

But what would happen if an MP raises a point of order or attempts to ask the President a question when the President rises to deliver the State of the Nation Address on Thursday?

In terms of Joint Rule 13 an MP will not have a right to make a speech during a joint sitting of Parliament unless invited to do so by the presiding officer or unless having obtained the permission of the Speaker and the Chairperson of the Council before the meeting.

But what about an MP not wishing to make a speech, but wishing to raise a point of order or ask a question instead? The joint rules of Parliament do allow MP’s to raise a point of order during a joint sitting as Joint Rule 14U states that: “A member may speak [during a joint session such as SONA] (a)  when called upon to do so by the presiding officer; or (b) to a point of order.”

Joint Rule 14L, which states that at a Joint Sitting a member “may only speak from the podium, except to raise a point of order or a question of privilege” or in other circumstances not relevant here, confirms the right of MP’s to raise points of order.

This means the Joint Rules do not allow MP’s to ask questions of the President when he rises to deliver his State of the Nation Address. However, at the same time the Joint Rules do clearly allow MP’s to raise points of order when the President delivers his State of the Nation Address addresses to a Joint Sitting of Parliament.

In fact Joint Rule 14S requires that when such a point of order is raised the person delivering the speech (in this instance it would be the President) must go back to his or her seat. After the point of order has been stated to the presiding officer by the member raising it, the presiding officer must then give his or her ruling or decision thereon either forthwith or subsequently.

Now, it is argued that a convention has been established over the years that MP’s do not raise points of order when the President delivers his State of the Nation Address.

However, Joint Rule 4 is very clear that such a practice cannot extinguish the right of MP’s to raise points of order at a joint sitting. The Rule states unequivocally: “No convention or rule of practice limits or inhibits any provision of the Joint Rules.”

In short, EFF MP’s will be within their rights to raise points of order during SONA. However, they will not be authorised to pose questions to the President.

But is it possible to argue that the Speaker retains a residual power to make rulings about the conduct of MP’s, regardless of whether the conduct is authorised by the rules of Parliament or not?

In this view, the Speaker would be able to enforce a convention established over many years by ruling that no MP may raise a point of order during SONA, because the Speaker has the ultimate authority to control matters in Parliament and to enforce discipline.

This view would be in conflict with the Rule of Law, a founding value in our Constitution, which requires that public power can in general only be exercised if the Constitution, legislation or other legal rules authorise it.

The Joint Rules of Parliament do authorise the Speaker and the Chairperson of the National Council of Provinces (NCOP), acting jointly, to “give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide”.

As the Joint Rules do not provide for the asking of questions, the Speaker and Chairperson of the NCOP can rule that no questions will be allowed during SONA.

But the Joint Rules do provide for the raising of points of order by MP’s during a joint sitting of Parliament. SONA is such a joint sitting of Parliament. Nothing in the Rules provide for treating SONA as different from any other joint sitting of Parliament.

If I am correct in this reading, it means that the Speaker (acting alone or jointly with the Chair of the NCOP) is not legally authorised to make a ruling to disallow points of order because this would amount to an unlawful attempt to circumvent the written Joint Rules of Parliament, which do allow MP’s to raise points of order.

(The Joint Rules can of course over time be amended. But they cannot be amended unilaterally by fiat of the Speaker.)

Of course, if EFF members do not only raise points of order as they are legally authorised to do by the Joint Rules of Parliament, but bang on tables, sing songs or otherwise create a grave disorder, the Speaker is authorised by Joint Rules 14K to “adjourn the sitting” or to “suspend the proceedings for a period to be stated by him or her”.

It is unclear whether the Speaker has the legal authority to have MP’s physically removed from Parliament if they create a disturbance. Section 11 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

The Act generally distinguishes between “members” (in other words MP’s) and “persons” (non-MP’s), so whether the section applies to MP’s is not clear. It is also unclear whether exercising your right as an MP to free speech in Parliament by asking questions or raising points of order could ever be viewed as creating a disturbance.

I suspect in the months to come our courts may well have to give clarity on this question. What is clear that raising points of order will not fall under section 11, as one cannot take part in a disturbance by exercising one’s rights in terms of the Joint Rules.

In any event, despite the fact that a State of the Nation Address is probably going to have no impact on the quality of governance in South Africa and, hence, will have little impact on the lives of ordinary citizens, it is an event that is invested with much importance by politicians, media elites and the punditocracy.

It may therefore be strategically unwise for a political party to disrupt this event. A party who disrupts this flagship event runs the risk of inviting the wrath of the “opinion-formers” and media bosses who control the quality and the quantity of publicity a political party receives. Whether the EFF would be wise to take on the establishment in this way, thus remains an open question.

Time to confront the evil of apartheid, not only of De Kock who defended it

If apartheid assassin Eugene de Kock did not exist, white South Africans would have had to invent him to absolve us of our complicity in (and/or our benefitting from) the system of apartheid, which de Kock brutally defended on our behalf. His release therefore leaves me with mixed emotions.

In Roberto Bolaño’s short novel By Night in Chile, Father Sebastián Lacroix (a Chilean Priest and literary critic) relives some of the crucial events of his life in a feverish delirium on his deathbed. Lacroix, an urbane, well-educated and respected member of the Chilean elite, sees himself unambiguously as a good man.

Yes, there was the time, shortly after the Chilean military disposed of left-wing President Salvador Allende in a bloody coup d’état, that father Lacroix agreed to provide lessons on Marxism to insecure coup leader Augusto Pinochet and other senior generals of the military junta. But in the mind of Father Lacroix, he is essentially a fair-minded man, a cultured man of letters, not somebody bothered with politics, but an intellectual concerned about literature – despite his sympathies for the military dictatorship.

During these early years of the dictatorship a curfew was in place in Santiago, but Lacroix often met with other writers and poets at the house of an up and coming writer (whom he at first calls talented, but – tellingly – later dismisses as second rate) and her “North American” husband. At the sprawling house they held all-night parties, drinking cognac and talking about literature and philosophy.

At first Lacroix says that he did not attend each of these gatherings, which was held about three times a week. Then he says he only attended once or so a week, and later he claims that he hardly went more than once a month. He also claims that he hardly knew the hostess and only spoke to her twice. The reason why he begins to distance himself from these gatherings becomes apparent only later.

After the fall of Pinochet it emerges that in the basement of the house where the literary gatherings were held, the “North American” had been torturing and perhaps killing opponents of the dictatorship. After being confronted with this revelation Lacroix visits the hostess at her house. She asks him whether he wished to see the basement where the torture occurred.

The Priest’s response: “I must be off, María, I really have to go”. He advises her to pray, but “I didn’t manage to put much conviction into my advice.”

As a white South African who benefited from the apartheid system in whose name De Kock murdered and maimed so many people (and as someone who continues to benefit indirectly because of the advantages granted to my parents and/or myself because of apartheid exploitation), the story of Father Lacroix is a frighteningly, yet fascinatingly, familiar one.

Many of us (and/or many of our parents) never became embroiled in the murderous depravity into which De Kock and some apartheid assassins and murderers in the Police and the Defence Force descended. It would be nice to think that – if we were put in the same position as De Kock – none of us would.

But who of us (and now I am not only talking about apartheid beneficiaries) can say with certainty that, no matter what the circumstances, we would never commit murder in support of a completely twisted but strongly held (and economically beneficial) set of ideals?

As someone who believes that too much certainty (while arguably providing us with a false sense of safety) runs the risk of making us stupid and complacent, I am not in a position to answer this question definitively for myself. I suspect that it is exactly when you contemplate the possibility that you too – given different circumstances – might have been capable of doing something unthinkably horrible, that you may be best placed to ward off the inhumanity that stalks the world.

De Kock was granted parole last week after only serving twenty years of his 212 year prison sentence imposed on him for six counts of murder, as well as conspiracy to murder, attempted murder, assault, kidnapping, illegal possession of firearms, and fraud. He was one of the few people ever convicted for what he did to defend the apartheid system. None of the apartheid politicians and the Police and South African Defence Force generals ever spent time behind bars for enforcing a crime against humanity.

What De Kock did was monstrous – far more monstrous than anything an ordinary beneficiary of apartheid did. Whether he deserves to be granted parole is, therefore, at the very least, debatable. But singling out De Kock as particularly evil is also comforting for those of us who benefited from apartheid and continue to do so because of its lingering effects.

It’s an archetypal example of “Othering”. We pinpoint one wrongdoer (the torturer in the attic) in order to obscure our own complicity in upholding and benefiting from the system in whose name De Kock committed his crimes.

Supporting the prosecution and conviction of De Kock and his continued incarceration, and insisting on depicting him as uniquely evil, allow us to avoid having to confront the fact that the system itself was evil through and through.

It helps us white South Africans who lived through apartheid (or whose parents did) to retain the idea that we were, for the most part, “decent” people – lawyers, accountants, government clerks, railway workers, doctors, school teachers, insurance brokers – who read and discussed the merits of good books and movies with friends, who went to the opera and the symphony concert, who swooned over the yodelling Briels, who cried when that dog was killed in that children’s movie, who treated our servants with condescending kindness. In our own minds we would never, ever deliberately endorse cruelty and violence towards others.

Yet, we benefited from the system whose very raison d’être was to oppress and exploit others and to uphold and defend the sham superiority of whites and what is ironically termed “Western civilisation” – the same “civilisation” that produced Hitler, Stalin, Vietnam and Iraq, and embraced and benefited from slavery and colonial oppression.

Of course, the majority of white South Africans actively supported the apartheid government (how else did the National Party won ever increasing support at whites-only elections) and may even have cheered on the likes of De Kock had they gotten the chance. A minority formally opposed apartheid and would have expressed horror at the murderous behaviour of De Kock and other apartheid security operatives.

But, like Father Lacroix, almost all of us – with the exception of a few truly exceptional people (Bram Fisher, Joe Slovo, Beyers Naude, Ruth First and others) – were metaphorically enjoying drunken literary parties while the torture and murder was being conducted in our name and on our behalf in the basement of the house called apartheid South Africa.

Why did more of us not make extreme sacrifices to oppose the system which dehumanised fellow South Africans? Why did more not sabotage the apartheid state in any way we could? Why did so few join Umkhonto we Sizwe? Self-interest, lack of bravery, indifference, or fear stopped a majority of “liberal” white South Africans from making real sacrifices to fight apartheid.

Some of us might have spoken out against the National Party and its apartheid policies from the safety of our white, privileged, existence. To show our open-mindedness, tolerance and essential decency, some of us might have spoken out about the need to free Nelson Mandela and to get rid of the horrid Nationalists.

(Although, it must be said, for some English-speaking white South Africans this mild “opposition” to apartheid had more to do with prejudice towards – and feelings of superiority over – white Afrikaners than with genuine abhorrence of apartheid and support for the struggle.)

For a white person like myself, this is not easy to admit. But it is – paradoxically – liberating. I suspect it is only after confronting our parents’ (and our own) corrosive entanglement with apartheid that we can begin to recover our full humanity.

One of the tragedies of our society is that many South Africans (of all races) do not realise how liberating it is to confront their own failings, their fears, their shame, their anger.

How can we begin to heal when we cannot admit that we are broken because of who we are and because of the harm we have caused others? How can we expect others to treat us with dignity and respect when we refuse to admit that we have harmed them in the past or are continuing to harm them now?

Metaphorically speaking (and without being asked) white South Africans have to go down to the basement of that house where we attended the glittering apartheid literary parties, we have to open the door to that room where people were tortured in our name, we have to see the blood on the floor and smell the stench of other people’s fear and nod our heads for all to see and say, yes, this was done in my name.

Xenophobic attacks: apartheid-thinking alive in South Africa

The attacks on foreign owned businesses in Johannesburg last week and the refusal of many South Africans to acknowledge the xenophobic impulse behind these attacks – as well as the odious justifications for such attacks – are, sadly, not that surprising. After all, the stench of apartheid-thinking (and the false sense of South African exceptionalism that it reflects) lingers on twenty years after the formal end of apartheid.

A few years ago I was sitting at OR Tambo airport, waiting to board a flight when a young man in a well-cut grey suit, impeccably pressed white shirt and colourful tie, came over to greet me. He had been one of my students at the University of Western Cape, he told me, and was now a Deputy Director General in one or other government department.

I was bursting with pride. I always feel terrific when I hear of the successes of a former student.

“Where are you off to,” he asked as we sipped our drinks.

“Addis Ababa,” I said.

“Oh, you are going to Africa,” he replied, raising his left eyebrow and flashing a sceptical grin. “Good luck with that, chief.”

Here we were in Johannesburg – a “World Class African City”, as the slogan would have it – and my interlocutor (who would be classified as “African” in terms of Employment Equity legislation) was suggesting that I was venturing into a scary and dangerous place called “Africa”, a place very different from Johannesburg where South Africans stayed and belonged.

The comments made me feel deflated. I had clearly failed this former student, who should never have graduated without a more accurate and confident sense of South Africa’s place on our continent.

Of course, the attitude that South Africa is not fully part of the African continent and (in its way) is different from other African countries, permeates the thinking of many South Africans.

Driving home from work and listening to the business programme, I often hear this or that CEO of a large company tell us listeners that his company (it is always a man) has an “Africa strategy” and that it is planning to “expand into Africa”. (Imagine a CEO from the USA talking about plans to expand into America.)

This feeling of apartness from the rest of our continent and from its people (exhibited by some, but obviously not all, South Africans) must surely be partly blamed on the political isolation of South Africa during the apartheid years. Those who lived in exile or often met up with family or friends in exile must have had a different experience. But those of us who remained on the southern tip of Africa with our “colonialism of a special type” were taught very little about the rest of our continent and about its people.

When freedom arrived in South Africa many of us knew more about Jan van Riebeeck, Die Groot Trek, the unification of Germany and the French revolution than we did about the struggle against colonialism in Africa. How many knew much about the lives of Kwame Nkrumah, Patrice Lumumba or Thomas Sankara?

Some South Africans have probably also internalised some of the racist thinking on which the apartheid regime was built. It would be strange if many of our minds had not been partly colonised by ideas of supposed “Western” superiority. No wonder some of our compatriots still fear, hate or despise foreigners from the rest of our continent, while showing no such fear, hatred or scorn for foreigners from Europe or the USA.

Apartheid may be formally a thing of the past, but some of the dangerously destructive and hateful ideas on which that ideology of supremacy was built linger on in the minds of some South Africans. It may therefore not be that surprising that some South Africans have been willing over the past week to excuse or justify the Johannesburg attacks on businesses owned by fellow Africans.

The drafters of our Constitution – many of them having experienced the hospitality of Africans across our continent in years of exile – evidently never shared this fear, hatred and prejudice towards foreigners from the rest of the African continent. On the contrary, perhaps mindful of our past and the role played by fellow Africans in assisting our liberation movements, the Constitution protects foreigners who enter South Africa – regardless of where they come from or how they landed here.

This is so because most of the rights in the Bill of Rights (with the exception of rights like the right to vote and the right to citizenship) are guaranteed for “everyone”.

“Everyone” includes immigrants, permanent residents or those who live in South Africa on temporary work or study permits. In Lawyers for Human Rights v Minister of Home Affairs the Constitutional Court found that foreigners who have not entered South Africa legally are also protected by all the rights in the Bill of Rights which apply to “everyone”. This is so because at the heart of the Bill of Rights is the idea that each individual possesses an inherent human dignity, is of equal moral worth and, hence, cannot be treated differently just because we dislike or fear him or her or have made assumptions or generalisations about a person because of where he or she was born.

In the words of Judge Nugent in the Supreme Court of Appeal (SCA) judgment of Minister of Home Affairs v Watchenuka:

[Human] dignity has no nationality. It is inherent in all people, citizens and non-citizens alike, simply because they are human beings. And while that person happens to be in this country, for whatever reason, [their human dignity] must be respected, and is protected, by section 10 of the Bill of Rights.

That foreign nationals are protected by our Constitution is not surprising. They are often some of the most vulnerable people in our society, some having fled war zones, economic hardship or political persecution.

The argument that foreigners should be treated differently and deserve to be discriminated against, vilified and persecuted because they do not play their part to build the country, is also factually incorrect. As the Constitutional Court pointed out in Khosa and Others v Minister of Social Development and Others foreign nationals contribute to the welfare system through the payment of taxes (at the very least by paying VAT on all goods they buy). Many also contribute to the economy in other ways, enrich our culture and provide needed skills.

Besides, even when some foreign nationals are poor and contribute little in the form of taxes, the value of Ubuntu enjoins us to treat people equally, regardless of their country of origin. In the words of Justice Yvonne Mokgoro in the Khosa judgment:

Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole. In other words, decisions about the allocation of public benefits represent the extent to which poor people are treated as equal members of society…  A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.

The Constitutional Court judgment in Koyabe v Minister of Home Affairs illustrates the general attitude towards foreign nationals demanded from us by the Constitution. Ruling that foreign nationals are entitled to reasons for a decision declaring them illegal foreigners in terms of the Immigration Amendment Act, the Court made the following observation:

In our constitutional democracy, officials are enjoined to ensure that the public administration is governed by the values enshrined in our Constitution. Providing people whose rights have been adversely affected by administrative decisions with reasons, will often be important in providing fairness, accountability and transparency. In the context of a contemporary democratic public service like ours, where the principles of batho pele, coupled with the values of ubuntu, enjoin the public service to treat people with respect and dignity and avoid undue confrontation, the Constitution indeed entitles the applicants to reasons for the decision declaring them illegal foreigners.

It is, of course, easy to blame foreigners for all the ills that beset South Africa. It’s easy to pick on a vulnerable minority and to pretend that all will be well if only we could rid ourselves of the group targeted for attack or extermination. It is easy to conjure up hate-filled stereotypes of fellow Africans to justify their persecution.

But it is intellectually lazy and dangerous. Instead of confronting problems head on, such victim-blaming allows us to stick our heads in the sand. It also endangers the lives of fellow Africans and destroys communities.

But just as important, it demeans us all when we condone the persecution of our fellow human beings. In the words of Justice Albie Sachs in Port Elizabeth Municipality v Various Occupiers “[o]ur society as a whole is demeaned” when action “intensifies rather than mitigates” the marginalisation of vulnerable people in our society.

In short, it reminds us that apartheid-thinking continues to live – like a dangerous virus – in the brains of quite a few South Africans.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

European Court often condones restrictions on free speech to accommodate “sensitivities”

In the wake of the shocking murder of journalists and innocent bystanders in Paris last week, many commentators have extolled the virtues of the unfettered right to freedom of expression. But freedom of expression is limited in all democracies. The European Court of Human Rights often condone restrictions imposed on freedom of expression by democratic governments across Europe, finding that such restrictions comply with the provisions of the European Convention of Human Rights. I have dug up a few examples to illustrate this rather obvious, but often ignored, point.

In 2013 Chelsey Manning was convicted by a United States court of violating the Espionage Act and other offenses, after releasing classified documents eventually published on Wikileaks. Manning is serving a 35-year prison sentence for her “crime”. But it is not only in the US where freedom of expression is often restricted for political, religious or so called “moral” reasons.

In what follows I provide examples of recent freedom of expression judgments of the European Court of Human Rights that demonstrate that across Europe courts often justify restrictions on freedom of expression and that Europe’s highest human rights tribunal regularly upholds such restrictions.

This means that it may not be accurate to imply (as some – but not all – commentators on the Charlie Hebdo tragedy have done) that any state that imposes limits on freedom of expression to accommodate the religious sensitivities of a section of the population would in effect condone religious tyranny and intolerance.

Otto-Preminger-Institut v Austria (1994)

In 1985, at the request of the Innsbruck diocese of the Roman Catholic Church, an Austrian public prosecutor instituted criminal proceedings against Otto-Preminger-Institut’s manager for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian Penal Code for advertising and showing a film Das Liebeskonzil (“Council in Heaven”).

The authorities subsequently seized the movie. It was the seizure of the movie and the legal provision that authorised this that was challenged before the European Court of Human Rights on the basis that it unjustifiably infringed on article 10 of the European Convention of Human Rights. Article 10(1) states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Das Liebeskonzil portrays God as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. The adult Jesus Christ is portrayed as a low-grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting.

Finding that the seizure of the movie did not infringe unjustifiably on the right to freedom of expression the Court took note of the fact “that the Roman Catholic religion is the religion of the overwhelming majority of” the community in which it was shown.

In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.

Leroy v France (2008)

In 2002, the French cartoonist Denis Leroy was convicted for complicity in condoning terrorism for drawing a cartoon representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it”.

The conviction was secured in terms of article 24, section 6 of the French Press Act of 1881, which penalises, apart from incitement to terrorism, also condoning (glorifying) terrorism.

The Court argued that through his choice of language, Leroy commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims, as he submitted his drawing on the day of the attacks and it was published on 13 September.

According to the Court, the cartoon had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. In the circumstances the European Court of Human Rights found that the conviction constituted a permissible limitation on the right to freedom of expression protected by article 10 of the European Convention of Human Rights.

Mouvement Raëlien Suisse v Switzerland (2012)

The aim of the Raëlien movement is to make the first contacts and establish good relations with extra-terrestrials. The Raëlien Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raëlien Movement has expressed opinions in favour of human cloning.

In 2001 the Swiss arm of the movement was denied permission to launch a poster campaign on the basis that the Raëlien Movement was a sect and engaged in activities that were contrary to public order (ordre public) and immoral.

The movement wanted to put up posters with the heading: “The Message from Extra-terrestrials”. At the very bottom was the phrase “Science at last replaces religion”.

The European Court confirmed the legality of the prohibition on the distribution of the posters, noting that the movement were still able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes.

Ï.A. v Turkey (2005)

In 1994 the applicant was convicted of blasphemy against “God, the Religion, the Prophet and the Holy Book” after publishing a book criticising the beliefs, ideas, traditions and way of life of Anatolian Turkish society “by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit”.

The book contained passages that implied “a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam”.

The European Court on Human Rights declined to find that the conviction constituted an unjustifiable infringement on the right to freedom of expression protected in article 10 of the Convention of Human Rights.

Noting that the impugned action against the author was “intended to provide protection against offensive attacks on matters regarded as sacred by Muslims” it held that the measures “may reasonably be held to have met a ‘pressing social need’”.

Wingrove v The United Kingdom (1996)

Mr Nigel Wingrove, a film director, made a video entitled Visions of Ecstasy, which he hoped to distribute to interested people across the United Kingdom. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa.

It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground.

The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her.

The British Board of Film Classification refused to authorise the lawful distribution or showing of the movie due to its “obscene” nature and because the movie was “blasphemous”. Although it was not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is “decent and temperate”, “the tone, style and spirit” of the movie was “bound to give rise to outrage at the unacceptable treatment of a sacred subject”.

The European Court of Human Rights found that “it was not unreasonable” for the UK authorities to refuse to classify the movie for distribution. Although this amounted to a complete ban on the film’s distribution, “this was an understandable consequence” of the blasphemous nature of the movie.

The Court thus found that the banning of the film was justified as being necessary in a democratic society within the meaning of paragraph 2 of Article 10. This paragraph states that:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

These examples suggest that many states across Europe pass laws or impose judicial limits on free speech to accommodate the religious and moral sensitivities of members of their societies. Europe’s highest human rights tribunal does not always view these restrictions as threatening basic democratic freedoms on the continent. This suggest that reasonable people may well differ on the necessity to limit speech to accommodate religious and other “sensitivities”.

Many of us may well disagree with the latitude shown by the European Court of Human Rights towards such limitations. We may prefer a more expansive interpretation of free speech and a more restrictive interpretation of the justifiable limitations on freedom of expression.

However, any relatively informed person will have to think twice before arguing that any state that limits freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance or that demands for such limitations itself constitute an attack on freedom, liberty and democracy.

Did the politics of patronage require suspension of the Hawks boss?

When political and economic patronage (instead of ideology) becomes the glue that holds a governing party together, it becomes ever more difficult for the leaders of that party (no matter how honest and principled they might be) and the government they lead to obey legal rules and to provide strong support for the constitutional institutions which the party helped to create and which, in principle, it had always supported and respected. The current turmoil at the Hawks raises questions about whether patrimonial politics within the ANC has now reached this point.


Pic: Esa Alexander, The Times

Shortly after Jacob Zuma was elected President of the ANC, the ANC-led government abolished the Scorpions anti-corruption unit because it was pursuing more than 700 fraud and corruption charges against the President of the party. It replaced the Scorpions with a toothless body, which it ironically christened the Hawks.

The destruction of the Scorpions can be viewed as a pivotal moment in what Professor Tom Lodge in a recent article in African Affairs calls the apparent transformation of the ANC from a rule-regulated, mass-based party into an organisation mostly shaped by personal financial and other interests. As Lodge argues:

Increasingly within the ANC, leadership behaviour appears to be characterised by neo-patrimonial predispositions and, while formal distinctions between private and public concerns are widely recognised, officials nevertheless use their public powers for private purposes. Other symptoms of neo-patrimonial political behaviour have also appeared. There is factionalism, that is, the emergence of internal rival groups constituted by personal loyalty rather than shared ideological beliefs. Another manifestation is the affirmation by the ANC leadership of ‘traditionalist’ representations of indigenous culture, whereby moral legitimation is sought more and more from appeals to ‘Africanist’ racial solidarity and nostalgic recollections of patriarchal social order rather than on the basis of the quality of government performance.

In a neo-patrimonial political culture party leaders and their families acquire substantial business interests. Local office holders are kept happy through municipal and provincial tendering procedures when municipalities are “captured” by informal patronage networks that trump the influence of ANC branches.

Business leaders are “co-opted” and willingly contribute funds to the party or to individual leaders in exchange for financial and other benefits in the gift of the state. State owned enterprises also become vehicles for dispensing different forms of patronage.

This does not mean that there are not many leaders (and clearly many more members) within the governing party that do not detest illegal forms of patronage and corruption and do not try, as best they can, to counter it. But it does mean that their struggle becomes ever more difficult. As Lodge argues with reference to the ANC under President Jacob Zuma:

This kind of behaviour has been accompanied by sharpening competition for posts in government and within the party organisation, which in turn has eroded the decorum that used to characterise the ANC’s internal procedures. The ANC’s leadership increasingly reinforces its authority and demonstrates its power through displays of ostentation and through elaborate security procedures…. [Thus] the behaviour of ANC leaders and their followers is beginning to correspond to conventions associated with clientelistic organisations, in which specific public services and resources are offered to particular groups in exchange for political support.

While a neo-patrimonial governing party depends on institutions such as the Hawks, the Public Protector and the judiciary to deal with factional opponents and to legitimise its rule, the dominant faction needs to be able to exert some control over such institutions to protect the members of the dominant faction from some of the consequences of patrimonial politics.

(It must be said that while some forms of patronage are perfectly legal and are indulged in by all governing political parties in any democracy, many other forms of patronage are not).

The relentless attacks on the Public Protector in the wake of her Nkandla Report, and (perhaps) the illegal suspension of Anwar Dramat, the head of the Hawks, by police minister Nkosinathi Nhleko, may be manifestations of this need to exert control over “independent” institutions that may pose a threat to the financial and political interests of the dominant faction within the governing party.

Neo-patrimonial politics have negative consequences for a country and, inevitably, lead to an increase in corruption. And as the Constitutional Court stated in the original Glenister judgement:

corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

The majority of the Constitutional Court in that original Glenister judgment thus declared invalid several provisions of the law that torpedoed the Scorpions and created the toothless Hawks instead. Finding that an anti-corruption fighting body needed to be “shielded from undue political interference” to be effective, the Court found that the Hawks as originally set up lacked the adequate independence to shield it from such political interference.

One of the reasons the original legislation did not provide for adequate independence for the Hawks was the lack of specially entrenched employment security for members of the Hawks – including its head. Where members of the Hawks can be fired (or suspended) at the whim of a politician it “may well disincline members of the [Hawks] from reporting undue interference in investigations for fear of retribution”.

After Parliament purported to amend the legislation to give effect to the original Glenister judgment, the Constitutional Court once again declared invalid several sections of the amended legislation in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others.

One of the sections it declared null and void and thus of no force and effect was section 17DA(2) of the Police Services Act. This section stated, amongst others, that:

(2) (a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The Constitutional Court explained that this section – purportedly relied on by the Minister of Police to suspend Mr Dramat – was unconstitutional and invalid because:

This subsection (2) removal power is inimical to job security. It enables the Minister to exercise almost untrammelled power to axe the National Head of the anti‑corruption entity.

The Constitutional Court therefore found that the quoted section of the Police Services Act was “inconsistent with the Constitution” and was “declared invalid and deleted” from the law. The effect of this Court ruling was that the section which the Minister of Police had relied on to “suspend” Dramat has the same legal power as a suicide note scribbled on a piece of toilet paper by a scorned lover about to jump in front of the Gautrain.

It must be noted that the Court did not declare invalid section 17DA(3) to (6) of the Act. These sections provide for the suspension of the National Head of the Hawks by the Minister, but ONLY AFTER a Committee of the National Assembly has initiated an investigation into the possible removal of the Head of the Hawks.

The sections require that a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two thirds of the members of the National Assembly to be implemented, thus protecting the Head against removal on party political grounds.

The National Assembly has not initiated such an investigation, which means that the Minister has no legal power to suspend the head of the Hawks. He could only suspend the head of the Hawks once the inquiry by the National Assembly has started.

Yet the Minister of Police relied on the unconstitutional and thus deleted section of the South African Police Services Act to “suspend” the head of the Hawks. This was unlawful. No court in South Africa will endorse the illegal suspension of Mr Dramat by the Minister of Police.

Which begs the question: why did the Minister of Police rely on a deleted section of the law to pretend to suspend the head of the Hawks just before Christmas? Was this really for the reasons stated or did it become necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks?

In other words, when the Minister of Police was confronted by the demands created by the culture of neo-patrimonial politics within the ANC and its financial supporters, did he decide to ignore the Constitutional Court judgment (and hence, did he decide to flout the Rule of Law) in order to protect factional interests within the party?

Or did he act illegally because his legal advisors are so incompetent that they are unable to read and comprehend the order handed down by the Constitutional Court?

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.