As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
According to public opinion surveys, only one-third of the South African population trust that Parliament will do what is right “most of the time”. This is much lower than trust in the SABC, but higher than trust expressed in local government. One imagines that the Travelgate scandal and regular news reports showing members of opposing parties engaging in often childish and vacuous “debates” in the National Assembly have not helped to instil trust in our Parliament.
There are many problems with the way our Parliament operates. The strict party discipline (enforced by party whips); the electoral system that makes members of Parliament beholden to party leaders instead of the electorate; the large turnover of MP’s (especially amongst the ruling ANC); the lack of specialised legal knowledge of many MP’s; the often acrimonious public spats between MP’s of the ANC and the DA; the contemptuous attitude displayed by some Ministers for the work of Parliament, all erode public trust in the institution and hamper the work that MP’s are constitutionally required to do.
Yet, anyone who regularly attends meetings of the various portfolio committees of Parliament would know that these committees often do important work and make a real contribution to our system of governance. Many (but sadly not all) MP’s take their job seriously and (away from the cameras) often manage to work across party lines to improve draft legislation and to hold the executive to account — despite resistance from some Cabinet Ministers and senior officials who do not always display the requisite respect for MP’s and the work they do.
Many NGO’s, civil society groups, legal academics and concerned individuals submit comments to draft legislation and make presentations at oral hearings of portfolio committees because they believe their interventions may make a difference. Unless an issue is highly politicised (which hardens attitudes and make any compromise less likely) or the chairperson of a portfolio committee is incompetent or driven only by ideological considerations, portfolio committees can play an important role to improve legislation and to hold government departments to account for mismanagement, wasteful expenditure and bad governance.
Of course, there is much room for improvement, but work of real value is done in these committees — something most South Africans seem unaware of. The involvement of NGO’s, civil society groups, academics and lawyers in this process is essential. Section 59 of the Constitution recognises this and states that the National Assembly must facilitate public involvement in the legislative processes of the Assembly and its committees. As a general rule, all meetings of committees are open to the public and the media, who can only be excluded if this is reasonable and justifiable in an open and democratic society.
But what happens if members of the public attend public hearings and then stage a demonstration to protest against the provisions of a Bill being considered by a committee? This happened on Tuesday when a delegation of Right2Know Campaign staged a protest at a meeting of the ad hoc Committee handling the Protection of Information Bill. The Right2Know supporters covered their faces with masks depicting Minister Siyabonga Cwele and held up placards reading: Cwele, Minister of Secrets!
The Right2Know campaign believes that the public should have a right to express themselves in Parliament in a manner that does not disrupt the ability of MPs to conduct their business. In this spirit we have been protesting inside the Committee for the past months with our campaign t-shirts and taped mouths — indeed, by our very presence. It is not clear why certain ANC members of the Committee have now decided to explore legal action to limit the R2K Campaign’s free expression.
ANC members of the Committee took great offence to this protest. They alleged that R2K supporters had broken the law and requested the Committee Chairperson, Cecil Burgess, to launch an official investigation into the incident. I am on record as supporting the work of the Right2Know campaign. The Protection of Information Bill – even in the latest “improved” version — is a draconian document and if passed it will seriously hamper the efforts of civil society, the media and whistle blowers to expose corruption and maladministration. It will foster a culture of secrecy, instead of the culture of openness, transparency and accountability promised by the Constitution.
Yet, I am not sure I can support this latest action by the Campaign. Although the reaction of ANC MP’s might have been over the top (after all, the demonstration was peaceful and non-disruptive) I am not sure Parliament is the place for this kind of protest.
For one, the demonstration was clearly illegal. Section 7 of the Regulations of Gatherings Act 205 of 1993 prohibits any demonstration within the Parliamentary precinct or near Parliament unless permission has been granted. A demonstration is defined broadly to include any protest action by one or more persons. A criminal offence was therefore committed.
This Act was passed by the apartheid Parliament and restricts the freedom of expression and the right, peacefully and unarmed, to assemble, to demonstrate and to picket. But I suspect that the Constitutional Court will find that any such restriction is justifiable in terms of the limitation clause. Anyone who is unhappy with the work of a Parliamentary Committee can, of course, protest or demonstrate against this — as long as they do not do so in and around Parliament without obtaining the required permission. This section therefore does not place an absolute restriction of the right to free expression or assembly.
There are also pressing policy considerations for regulating protests inside Parliament. Members of the governing party might argue that any demonstration or protest inside Parliament – even where it is peaceful and not disruptive — threatens the national security of the state. That would be a silly and rather authoritarian argument to make. A far better argument would be to point out that such demonstrations detract from the dignity of the Parliament.
An even better argument would be that allowing demonstrations at committee meetings — even if these are peaceful and non-disruptive — is not conducive to creating an atmosphere in which MP’s can carefully consider the various objections and proposals from experts and members of the public and can do their work in a relatively calm and deliberative manner. Demonstrations – even peaceful demonstrations — have a tendency to inflame passions and stir up emotions. Surely we would not want our MP’s to make important decisions about our future while they are seething with self-righteous anger? The line between disruptive and non-disruptive demonstrations will also be very difficult to draw and policing members of the public to ensure that demonstrations do not become disruptive will be costly and often rather difficult.
In my opinion committee meetings of Parliament is not the place to hold demonstrations. Let us rather meet outside Parliament where we can toyi-toyi, wave placards, do Volkspele or express our views and feelings in any other way we see fit — without detracting from the work done by the members of Parliament inside the legislature.
This is about a principle, not about the cause in whose name the principle had been breached. Imagine how you would feel as a DA supporter if ANC members, angry at the Western Cape’s government’s housing policies, demonstrate at a committee meeting of the Western Cape provincial legislature by holding up placards of Helen Zille’s peering out of a window of her palatial official home. Or how you would feel as an ANC supporter if DA supporters attend the State of the Nation address and display large replicas of Zapiro cartoons showing the President with a shower-head on his head.
Personally, I would have sympathy for the cause of the demonstrators, but I would feel very uncomfortable with such a demonstration being held inside a committee room of the legislature or inside the debating chamber of the National Assembly or NCOP. The same goes for the Right2Know demonstration. In the bigger picture this is not a life or death issue, but it does ask us to think about first principles and to conclude that demonstrations inside Parliament is not easily compatible with the smooth running of a democracy.BACK TO TOP