Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
29 January 2010

Fifa World Cup: bad for human rights?

When South Africa won the right to host the 2010 Fifa World Cup many of us danced in the streets (in a manner of speaking). Finally, we had won the right to host a really major international sporting event (no offence to rugby and cricket, but those World Cups were Micky Mouse compared to the Fifa event.)

We all remembered the Zapiro cartoon published after Cape Town lost the bid to host the 2004 Olympics to eventual host city, Athens: A dejected Capetonian dragging a “Cape Town 2004” banner behind him is seen saying: “Athens se ma se….” Now it would be our time to shine on the international stage – and make some money too.

How naive we were.

We did not realise that Fifa was a rather shadowy body with authoritarian tendencies. We did not realise then that the Fifa fat-cat executives cared little about South Africa and its people and very much about making obscene profits while placing impossible demands on the host country. 

Fifa demanded that the Cape Town soccer stadium be built in Greenpoint and not where it was needed in Athlone because it would look good on TV – and the city jumped. Fifa demanded that host cities do something about “the homeless problem” – and once again the host cities jumped, embarking on probably illegal action to intimidate the most vulnerable and marginalised in our society and arresting and intimidating the homeless.

Now we learn that Fifa is imposing impossibly draconian conditions on journalists who wish to be accredited with Fifa.

Fifa’s terms and conditions for the accreditation of journalists state that news organisations may not “harm the reputation of the Fifa World Cup” or “engage in conduct which expresses … charity or ideological concern (sic) related views, which could impair the enjoyment of the Fifa World Cup by other spectators, or detract from the sporting focus of the Fifa World Cup”.

Well, I have news for Fifa: these conditions are most probably unconstitutional. Unlike in many other constitutional democracies, our Bill of Rights does not only apply to the state. Because the drafters of the South African Constitution understood very well how individuals and powerful organisations like Fifa could infringe on the rights of ordinary citizens, it ensured that the Bill of Rights applied not only vertically (protecting us from abuse of power by the state) but also – in certain circumstances – horizontally (protecting us from the abuse of power by private individuals and institutions).

This does not mean that I cannot chase someone from my house if he or she makes a racist statement on the grounds that I would be infringing on that person’s right to freedom of expression. After all, limiting a person’s freedom of expression to say what he or she likes in my private home will have no consequences for our democracy, for the free flow of information and for the public’s right to know what is going on in the country.

It does mean, however, that Fifa is probably constitutionally prohibited from imposing such draconian restrictions on journalists.

The difference between my two examples is that Fifa is an extremely powerful body and holds a near monopoly on providing access to journalists to report effectively on the World Cup. Journalists who do not get accreditation from Fifa would be at a distinct disadvantage when reporting on the World Cup and they are therefore placed in an untenable position: either agree to the Fifa censorship or lose out.

But if journalists cannot report fairly and accurately about Fifa and the World Cup because they are forced by Fifa to censor themselves, the right of the general public to be fully informed about the World Cup and to be told both the good and the bad things about it would be severely limited. I suspect this kind of censorship that Fifa wishes to impose therefore unconstitutionally limits the right to freedom of expression and a free media guaranteed in section 16 of the Constitution.

Lawyers for the big media houses have written to Fifa to point this out to them, so the ball is now in Fifa’s court. One suspects they will play hardball and will try and intimidate the media to enforce their censorship on everyone. After all, Fifa is used to getting its way. Hopefully the media will stand its ground and will go to court on behalf of the nation as a whole to ensure that our news on the World Cup is not censored in the way.

This World Cup is not a private affair. Billions of Rand of public money have been spent on the World Cup in building stadiums and upgrading infrastructure and much more of our money will be spent on security for the event. South Africans therefore have a right to know about both the good and the bad things about the World Cup and about Fifa.

If Fifa demands from the government that it arrest protesters or remove the homeless from the streets, journalists should be free to report on this and should not fear that their accreditation will be revoked if they tell us about it.

Obviously Fifa would not like this – just as governments generally do not like this. But luckily we live in a constitutional democracy where even a bully like Fifa has to play by the rules. Let the games begin.

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