Flouting the Constitution a Threat to All

The following speech was given by PEN South Africa Vice President Raymond Louw on 30 June 2015 at a ceremony at the University of the Witwatersrand where he was bestowed with an honorary Doctorate of Literature for his “unstinting service to journalism and the fight for free expression and unwavering opposition to censorship, both locally and globally”. Read PEN SA’s statement.

How does one thank this great institution for the singular honour that it has bestowed on me? It is indeed an overwhelming honour and I am very proud to receive it. I’ll start by extending an extremely warm and appreciative thank you to you, Professor Habib, and to your colleagues who extended this honour to me. In doing so I am humbled to be joining the exceptional people you have honoured in the past.

Adding to my great pleasure today is the fact that this honour comes from the University of the Witwatersrand, a proud institution that has excelled in furthering the cause of journalism, professional media conduct, freedom of the press and freedom of expression all related to freedom and independence of academic endeavour. I also acknowledge that your battles for freedom have frequently been against great odds and frightful forms of repression.

When I mention repression I had some personal experience of that when my son Derek, then Editor of Wits Student, was arrested and charged with criminal defamation for defaming Prime Minister John Vorster. He published a cartoon describing Vorster as shuffling his cabinet but showing him switching the bottles in his liquor cabinet. Derek was fined and given a three years’ suspended jail sentence. The cartoonist, Franco Frescura, became stateless.

I congratulate the staff of the journalism school and members of the other faculties for their steadfast tackling of issues relating to the conduct of the craft, the search for truth and the furtherance of freedom. Indeed, this institution is building a proud reputation of producing journalism graduands of outstanding quality. In saying that, may I warmly congratulate the graduands who are being capped at this ceremony today. I am greatly impressed by the numbers who have gained distinctions and other honours.

May I also thank you for providing me with an exceptional platform to draw attention to the increasing threats facing the press from official quarters and elsewhere. These are a danger not only for journalists but for the people of South Africa and for our democracy. Yes, a danger for all the people because journalists are merely the front-runners who are hit first.

We are all aware of the loud opposition that has been voiced by the staff of this university and many civil society institutions against the Protection of State Information Bill which has been on the President’s desk for a year awaiting his signature to enact it into law. This, however, is only one aspect where government leaders have expressed hostility to the press. I should point out that hostility to the press was one of the reasons cited by Freedom House, the New York-based monitor of the freedom of nations and their media, to downgrade its rating of South Africa three years ago from a “free” country – that is since 1994 – to “partly free”, the status the National Party government achieved.

That hostility has led some government leaders to call the press “the opposition” – and to adopt practices which obstruct the press and prevent the public from being informed. The press and many civil society institutions have been highly critical of the misrule, serious shortcomings in service delivery, ever-increasing levels of corruption and other deficiencies in government. In response, the government has resorted to attempts to cloak its activities in secrecy.

Government officials obfuscate or withhold information -– including official reports which should be released to the public – and reporters and photographers have been arrested at crime scenes or other events under police control only to have the cases rejected by the prosecutors before they could be brought before the courts. Fortunately, these attacks on journalists have diminished, probably because of protests by the South African National Editors’ Forum. However, there are other laws that can hobble the media and restrict the public’s right to know and others waiting to be processed.

Apart from the “Secrecy Bill”, there are the National Key Points Act which prevents publication of security information at certain institutions and buildings – only recently identified after a long period of protest at government’s refusal to do so – the Protection from Harassment Act – which despite the good causes it serves can restrict journalists from gathering information by “staking out” the office or home of a person who refuses to answer questions over the telephone; anti-terrorism legislation called the Protection of Constitutional Democracy Against Terrorist and Related Activities Act; the Promotion of Equality and Prevention of Unfair Discrimination Act; and ominously waiting in the wings a proposal that Parliament should introduce a statutory Media Appeals Tribunal that would enable the government to control the press.

In Parliament, ministers have refused to answer questions from opposition parties on grounds that they are official secrets; Press Gallery correspondents have been removed from the offices close to the debating chamber that they have occupied since 1910 and accommodated in another building presumably to prevent them from having confidential
discussions with members of Parliament. Another move that angered journalists was the compilation by the Presiding Officers of a parliamentary code of conduct for journalists without consulting the journalists.

There are more instances I could mention but let me get to the vital aspect of recent government conduct which towers above the concerns I mentioned. That is the extraordinary violation by the government of South Africa’s Constitution a few days ago in allowing Sudan’s President, Omar al-Bashir, to sneak out of the country in defiance of an order of a High Court judge that he be prevented from leaving.

We’ve had cabinet ministers and officials ignoring court orders but those breaches of the law, serious as they are, are not in the same league as a sovereign government flouting the judiciary and the Constitution which it has sworn to uphold. The City Press described the government’s conduct as the lowest point in its attitude to the rule of law. But it is worse than that. What the government has done is to announce that it will choose when not to abide by the founding provisions of the Constitution, its supremacy and the rule of law. It could also imply rejection of the Constitution as a whole and that means that the many protections and rights of all citizens and institutions contained in that document are under threat.

Among the many questions that arise the one that concerns me – and I am sure all of you, too – is what reliance can be placed on the government continuing to abide by Clause 16 which enshrines freedom of expression and freedom of the press and by implication freedom of academia?

And that question becomes more urgent when it is recalled that a few years ago government’s senior leaders raised the thought of instituting a judicial review of the judiciary and the Constitutional Court. With President Jacob Zuma at the forefront they set alarm bells ringing among journalists, lawyers and academics – many in this institution – when they said they wanted to review the judgments and conduct of the Constitutional Court and their impact on transformation.

President Zuma raised concerns when he bluntly disclosed in an interview with The Star that “we don’t want to review the Constitutional Court, we want to review its powers.” Earlier, he had complained that the powers conferred on the courts could not be superior to the powers of a body elected in popular democratic elections — Parliament. He added that the government’s political opponents should not be able to subvert the popularly elected
government by using the courts “to co-govern the country”.

One interpretation of his views was that he wanted to reduce the powers of Constitutional Court judges so that they would be subservient to parliament. If that is what he meant and he gets his way, that will be the end of Constitutional democracy in South Africa. Indeed, the Black Lawyers’ Association read this into his statements. It said they reflected an intention by Zuma to revert to the National Party model of governance where parliament and not the Constitution is supreme. This means parliament would be the ultimate arbiter of judicial decisions – in effect the politicians of the majority party in parliament would have the power to decide on jurisprudence on political grounds rather than the rule of law.

There was much opposition to the proposals which, however, were not pursued. But those thoughts are still alive and, indeed, began creeping into party statements as the al-Bashir debacle unfolded. Higher Education Minister Blade Nzimande was quoted by City Press as saying that sections of the judiciary “tend to somehow overreach into areas that one would expect even in a constitutional state to tread very, very carefully.”

He was reported to have added, “if we don’t debate this, we run the risk of Parliament matters and executive matters being run by the courts.” The paper reported that several highranking members of the ruling party had expressed similar sentiments. The uncertainty and dangers surrounding Zuma and his government’s intentions lead me to make an earnest appeal to South Africans to exercise maximum vigilance over his treatment of the judiciary and the Constitution as well as in regard to secrecy and restrictive legislation. When protest at what is happening occurs it must be long and loud. If the government continues to flout the orders of the judiciary and draws the teeth of the Constitutional Court, at present the last line of defence to preserve press freedom – indeed all our freedoms – the Constitution can be regarded as dead and South Africa will have made the plunge into an authoritarian state, if not worse. Indeed, Judge President Dunstan Mlambo of the North Gauteng High Court spelt out the consequences as a horror story: the democratic edifice crumbling stone by stone until it collapses and chaos ensues.

(Image courtesy of the University of the Witwatersrand)