In our Bill Watch 22/2019 of the 17th April we analysed the Maintenance of Peace and Order Bill to see how far it differs from the Public Order and Security Act, and we concluded that the Bill will make no material difference to the existing law.
In this Bill Watch we shall examine the Bill again to see whether its provisions, if enacted, will be constitutional.
Before looking at the Bill, we should set out the relevant sections of the Constitution:
Section 58(1) guarantees to everyone the freedoms of assembly and association:“Every person has the right to freedom of assembly and association, and the right not to assemble or associate with others.”
Section 59, more specifically, gives a right to demonstrate: “Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully.”
Freedom of assembly and the right to demonstrate peacefully are aspects of the broader freedom of expression, which is guaranteed by section 61(1) of the Constitution:
“(1) Every person has the right to freedom of expression, which includes —
a) freedom to seek, receive and communicate ideas and other information.”
These rights and freedoms are the bedrock on which every democratic society is based. Ordinary citizens must be able to bring their concerns to the attention of their rulers – presidents, ministers and legislators – at times of their own choosing, not just at political rallies staged by the rulers themselves. Demonstrations serve this purpose and another one too: bringing issues to the notice of the wider general public, hence serving as catalysts for public debate.
Interpretation of sections 58, 59 and 61 of the Constitution
Because freedom of expression, freedom of association and freedom to demonstrate are so important to democracy, sections 58, 59 and 61 of the Constitution must be interpreted broadly to give them the widest possible scope. This is laid down by section 46 of the Constitution itself, which states that “full effect” must be given to the rights and freedoms laid down in the Declaration of Rights [of which the sections form a part] in order to promote “the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom”. While laws may limit the freedoms, the limitations must be “fair, reasonable, necessary and justifiable in a democratic society …” [section 86 of the Constitution]. Note that word “necessary”: it is not enough for a limitation to be reasonable or justifiable ‒ it must be necessary in a democratic society. If it is not, it is unconstitutional.
It should be noted that section 59 of the Constitution contains its own limitation: the section protects peaceful demonstrations, not violent ones. Riots are not protected. But the dividing line between riots and peaceful demonstrations is not always clear-cut. Demonstrations may be peaceful even if they cause disruption or disturbance. Demonstrators in a street may block traffic or prevent pedestrians from walking on a pavement, but that in itself does not amount to violence even if there is an implied threat that the demonstrators will forcibly resist any attempt on the part of traffic or pedestrians to push their way through the demonstration. In short, disturbance cannot be equated with violence.
Is the Bill Constitutional?
In the light of those principles, some clauses of the Bill may be unconstitutional while some most certainly are:
Clause 4 (Temporary prohibition of weapons)
This clause empowers a regulating authority [i.e. a senior police officer] to prohibit for up to three months the carrying in public of items capable of being used as weapons, if the regulating authority considers they are likely to occasion public disorder or a breach of the peace. The items include catapults, axes, knives and traditional weapons. Anyone found carrying such an item in breach of a prohibition will commit a criminal offence and be liable imprisonment for up to six months. Persons aggrieved by a prohibition under the clause will be able to appeal to the Minister of Home Affairs and Cultural Heritage, but not to a court.
There are two objections to this clause:
- People who carry prohibited items in public will be guilty of a criminal offence no matter what their reason for carrying them may be. A person who buys a kitchen knife, for example, and carries it home will be liable under the clause. There is no provision for exempting people who have a reasonable excuse for carrying prohibited items.
- Aggrieved persons cannot appeal to a court against a prohibition order under the clause. Hence they will be denied their right of access to the courts for the resolution of disputes, a right guaranteed by section 69(3) of the Constitution.
These two objections, taken together, suggest the clause, as it stands and without allowing for the necessary exceptions, is neither reasonable nor necessary in a democratic society based on openness and freedom. The clause is probably unconstitutional.
Clause 7 (Notice of gatherings)
This clause requires conveners of public gatherings (processions, demonstrations and public meetings) to give their local regulating authority advance notice of their gatherings ‒ seven days in the case of processions or demonstrations, five days in the case of public meetings. Failure to give notice will be a criminal offence rendering the defaulting convener liable to imprisonment for up to one year.
In a carefully reasoned judgment last November the South African Constitutional Court declared a similar provision in that country’s Regulation of Gatherings Act to be unconstitutional on the ground that criminalising failure to give notice of a meeting unduly limited the right of freedom of assembly and demonstration. The limitation, the court pointed out, penalised not just conveners but also participants because if conveners are deterred from organising a gathering then the gathering will not normally take place.
The South African Regulation of Gatherings Act seems to have been the model on which Part IV of POSA and Part II of the Bill are based, and the provisions of the South African Constitution on freedom of association and demonstration are very similar to those in our Constitution. Hence the decision of the South African Constitutional Court is highly persuasive.
One can say with some confidence therefore that clause 7 of the Bill is unconstitutional in that it makes failure to give notice of a gathering a criminal offence.
Clauses 5 to 8 (Prohibition of spontaneous gatherings)
More generally, clauses 5 to 8 of the Bill are unconstitutional because they require advance notice to be given of all gatherings. There is no room for spontaneity: if two or more people demonstrate in a street or public place, or conduct a procession, or if more than 15 people hold a meeting in a public place, they will have to give the Police at least five days’ notice in the case of a meeting or seven days’ notice in the case of a demonstration or procession. There are no exceptions allowing demonstrations to be held in immediate response to matters of public concern. This is a severe limitation on freedom of assembly and demonstration, so severe that the clauses are unconstitutional on that ground alone.
It may be noted that the South African Regulation of Gatherings Act makes proper allowance for spontaneity. In that Act for smaller assemblies no notice need be given: the requirement to give notice applies only to gatherings of more than 15 people, and it is a defence to a charge of failing to give notice of larger gatherings that people assembled spontaneously. Our Bill, like POSA, contains no such provision.
Clause 12 (Civil liability of conveners)
Clause 12 of the Bill states that if conveners fail to give the Police notice of their gatherings, or fail to comply with directives, notices or orders given by a regulating authority, they will be civilly liable for any damage, injury or death “occasioned by any public disorder or breach of the peace caused by or arising out of or occurring at the gathering”. The clause places on conveners the onus of proving that they gave proper notice and complied with all directives, etc.
This clause will obviously have a “chilling” effect on freedom to assemble and demonstrate, because conveners’ liability will be absolute. If a convener cannot prove that he or she gave notice under the Bill, he or she will be liable for all damage whether it was caused by participants in the gathering or by counter-demonstrators or by anyone else. It won’t matter if the convener tried to stop the damage or if it was not reasonably foreseeable; the convener will be liable for it just the same.
The liability is too broad and the onus of proof laid on conveners is too great: so broad and great in fact that the clause imposes an unreasonable limit on freedom of association, far beyond anything necessary in a democratic society. Hence the clause is unconstitutional.
Again it is instructive to compare the clause with the South African Regulation of Gatherings Act. Section 11 of that Act imposes similar liability on conveners but allows them to escape it if they can show they did not permit or connive at the conduct which caused the damage and that they took reasonable steps to prevent it.
Clause 14 (Persons to carry IDs)
This clause will require everyone who is 18 years old or older to carry an identity document when in public, and will give police officers power to demand that anyone aged 16 or older should produce an identity document. [Why the clause specifies two different ages is not clear] It will not be a criminal offence not to carry an ID but if a person does not produce one on request from a police officer, he or she will have produce it at a police station within seven days, and failure to do so will be a criminal offence.
In 1997 our Supreme Court held that a statutory provision which allowed police officers to stop people at random and demand their identity documents was unconstitutional in that it inhibited freedom of movement. Clause 14 contains just such a provision, and to that extent it too is unconstitutional.
All the provisions we have mentioned above are currently contained in POSA. The Bill will not change the law to any substantial extent, and no serious attempt has been made to bring it into line with the Constitution. If the Bill is enacted without amendments it will continue, like POSA, to stifle freedom of association, freedom to demonstrate and, more broadly, freedom of expression.