What can ordinary citizens do when the state – at either national, provincial or local government level – fails to fulfil its most basic obligations towards citizens to create the conditions that make it possible for them to live meaningful lives and to flourish? In developing his concept that a modern state is based on social contract between the governed and those who govern, Thomas Hobbes famously wrote that life in a state of nature is “solitary, poor, nasty, brutish and short”.
In such a state of nature, Hobbes argued, people fear death, and lack access to both the basic conditions that make a meaningful life possible, and the hope of being able to work to obtain a better life for themselves. In order to avoid this perilous state of affairs, people accede to a social contract and establish a civil society. According to Hobbes, society is a population beneath a sovereign authority (the state), to whom all individuals in that society cede some rights for the sake of protection. Any abuses of power by this authority are to be accepted as the price of peace.
In today’s human rights dominated world, the idea that we should accept abuses of power by those in authority merely because they create the basic conditions within which a meaningful life becomes possible, has been entirely discredited. But the fiction that we enter into a social contract with those in authority by ceding some of our freedom to them in exchange for the provision of basic services, still holds sway. When the state then reneges on its part of the bargain and fails to provide even the most basic minimum services to citizens, the mythical social contract breaks down completely.
This seems to have happened in the Gert Sibande municipality in Mpumalanga, where the 17000 citizens of Carolina seem not to have had access to sufficiently clean water since January (although this is being disputed by the officials and politicians) when the dam that supplies water to Carolina was polluted with acid mine water.
In response to this complete failure by the municipality to secure the provision of clean water, some residents of Carolina – with the assistance of Lawyers for Human Rights (LHR) and the Legal Resources Centre (LRC) – approached the North Gauteng High Court. Yesterday judge Moses Mavundla gave the acting executive mayor of the Gert Sibande municipality, Tunu Agnes Mnisi, and municipal manager DV Ngcobo, 72 hours to provide the 17000 citizens of Carolina, in Mpumalanga, with potable water.
The municipality had placed water tanks around town after disaster struck, but according to residents from early March 2012, until beginning of May 2012, the system of providing potable water through the tanks proved inadequate. Sometimes some of the tanks were not refilled, some remained empty. The tanks were accessed on “first come first served” basis. The end result was that the water supply in general was inadequate. Some of the residents have to walk long distances to access the potable water from the tanks.
Section 27 of the Constitution states that “[e]veryone has the right to have access to … sufficient food and water” and places a positive duty on the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right. The right to water is further amplified in the Water Services Act which states that every water services authority has a duty to all consumers or potential consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services. The Act also states that this duty is subject to, inter alia, the availability of resources and the need to regulate access to water services in an equitable way.
Where access to clean water is not provided because of a failure on the part of the municipality to take reasonable steps to ensure continued access to clean water, the right of access to water as protected in section 27 of the Act, read with the provisions of the Water Services Act, is being denied to citizens.
Of course, the crisis was originally caused by mines who failed to take steps to prevent the pollution of the dam with acid mine water. In terms of legislation they can be held financially liable for the damage they caused. But the mines are not constitutionally and legally obliged to provide the residents of Carolina with clean drinking water. That duty falls squarely on the municipality.
It was therefore disappointing to read comments by Water and Environmental Affairs Minister Edna Molewa that the court action brought by the residents provides evidence of a war against the state. “The mines were not cited in the court action.… You know, there is a war against the state,” said Ms Molewa at a Pretoria media briefing on Judge Mavundla’s ruling. The judge made no order against the Department of Water Affairs.
No Minister, there is no war against the state. Where the state fails to provide even the most basic services to citizens due to incompetence, laziness, arrogance, corruption or nepotism and in complete disregard of the basic needs of citizens, those citizens have a right and a duty to approach a court to try and get the relevant municipality to do what it is legally required to do. When the citizens do this and when the court then orders the municipality to do what it is legally required to do, it is not at war with the state but is in fact correcting the most basic breach of the social contract between the state and its citizens, saving the state from complete collapse.
Besides, as LRC attorney Naseema Fakir explained, although the LRC and the LHR had considered adding the mines to the action, it was felt that it was important to get water to Carolina’s residents as soon as possible. If the mines had been added as respondents, the application for an urgent court order would not have been granted. This is because the mines are not the ones who are constitutionally and legally obliged to provide citizens with clean water.
The Minister’s attitude is strange and troubling indeed. Instead of apologising to the citizens of Carolina for the criminal negligence of the municipality, she acts as if it is treasonous for citizens to have their most basic rights enforced through the courts. Her comments suggest that she believes that it is not legitimate for the state to be held accountable and to be ordered to take the most basic steps to provide citizens with clean water, without which life itself is not possible.
What is the use of us paying the salaries of the mayor of Gert Sibande municipality (and of the Minister for that matter), when they are not doing their jobs and not protecting us from the chaos of a nasty, brutish and short life? Maybe we should stop paying the Minister’s salary and those of her bodyguards for six months so that she can see how it feels to be treated like dirt.
No Minister, the war, if there is one, is being waged against citizens by tardy and incompetent government officials. As citizens in a constitutional democracy we have a right to approach the court in order to force the government to do its job and if we do we are not waging war against our government – just trying to get it to do what we pay it to do.
Source: Constitutionally Speaking
Showing posts with label LRC. Show all posts
Showing posts with label LRC. Show all posts
Wednesday, July 11, 2012
Monday, April 2, 2012
Contempt for court as SA tries to sneak foreigners out
Controversy continues to stalk the Lindela Repatriation Centre amid claims that the state, which refuses to acknowledge wrongdoing, is illegally keeping foreigners locked up -- and even trying to deport them before their cases have been decided by the courts. Last week, the state tried to subvert the justice system by arranging to deport foreigners held at Lindela before their cases had been finalised by the courts -- which later ordered their immediate release.
Yakubi Adeyemi* was placed on a plane bound for Nigeria in the early hours of March 28 -- but the flight was halted after an urgent court order was obtained by the Legal Resource Centre (LRC). Adeyemi is one of 22 men and women who had been held at Lindela for longer than the 120-day limit allowed for by the Immigration Act of 2002. After the failed bid to deport him, the department of home affairs was ordered by the South Gauteng High Court in Johannesburg to release the entire group, in accordance with the legislation. According to section 34 of the Act, an immigration officer may arrest an illegal foreigner without the need for a warrant and detain them for a period of no longer than 30 days, after which a subsequent 90-day order must be confirmed through a warrant issued by a magistrate. After 120 days of incarceration has elapsed, the Act stipulates all detainees should be released regardless of their official residence status. Additionally the Constitution states "everyone has the right not to be deprived of freedom arbitrarily or without just cause" -- a right afforded both to South Africans and foreigners.
"The department's behaviour [in trying to deport foreigners before the conclusion of the legal process] smacks of arrogance and indicates they are merely trying to prove a point as to who is in charge while people's dignity is violated and their livelihood is being put at risk," LRC attorney Naseema Fakir told the Mail & Guardian.
The LRC had on March 20 asked the court to order the state to release the group of foreigners. After earning a postponement in the case, the department of home affairs failed to appear in court on Thursday March 29, after which the court ordered the state to immediately release all applicants in the matter. However, in between court appearances the department had arranged to deport several applicants in the case. The LRC said it appeared that the haste with which the state tried to deport Adeyemi, who has two young children with his South African partner, was due to the fact that the department had already paid for his airline ticket -- before his case arrived in court.
"The department may look at this from a monetary point of view, but it is ridiculously traumatic for the individuals involved. There is no dignity in simply putting a person on a plane in order to get rid of them," Fakir said.
But the department of home affairs said it had been well within its rights to deport Adeyemi.
"There was no court order at the time the applicants were taken to OR Tambo International Airport to be deported. The order was granted at 5am on 29th March 2012. There was therefore no violation of the court order," the department said.
Ignoring court orders
But even after the court order stipulating immediate released was issued, another Nigerian detainee, Mogeni Oni*, was placed on a bus at Lindela ahead of a planned deportation. After emergency enquiries were made by the LRC as to why Oni was in the process of being deported, he was returned to the confinement area at Lindela. The 22 men and women were eventually released at 7pm on March 30 -- nearly 30 hours after the court order instructing immediate release was issued. The department of home affairs acknowledged that the 120-day limit for extended detention applied, but would not shoulder any blame for exceeding this period.
"The department works with resident embassies and high commissions in South Africa to verify the nationality of deportees and to process their travel documents. This process sometimes takes longer than 120 days," the department said.
The latest events follow a reported uprising at Lindela in which detainees, mainly of Nigerian and Ethiopian descent, were understood to have demanded a meeting with immigration officials after some were kept at the facility for more than nine months. After a violent confrontation, several internees were reported to have sustained serious injuries, with one understood to have been taken to hospital after the incident. After initially failing to respond to questions posed by the M&G on the unrest, the department eventually conceded that an "altercation" had occurred at Lindela but was "quickly brought under control" by officials at the centre. Earlier in March the LRC secured the release of a Nigerian and an Angolan who were unlawfully detained as illegal immigrants. The Nigerian, who had a valid work permit, was held for 114 days, while the Angolan was detained for 132 days without a warrant. The department has been accused of regarding deportation procedures with contempt.
"It seems as though they are truly a law unto themselves and court orders and the like have little effect on them," said Douglas Leresche, a project co-ordinator at People Against Suffering, Oppression and Poverty (PASSOP), an NGO working to protect and promote the rights of all refugees, asylum seekers and immigrants in South Africa.
While some of 22 foreigners involved in last week's incident are illegal immigrants, others say they have documents proving their stay in South Africa is legitimate. Damurah Mekonen* an Ethiopian national, businessman and resident of Durban for the past 11 years says he was arrested in late October while trying to have his residence permit renewed at Home Affairs offices in Glenwood. Mekonen said he was kept in Durban Westville prison for over a month before being transferred to Lindela, where he was kept for four months. He said no answers about his continued detention were forthcoming.
"These people know nothing. They simply arrest you and ask questions later. If you ask where they are taking you or why, they laugh at you," said Mekonen. "I am not a criminal and I have done nothing wrong. I am here legally and I pay taxes so I don't understand their problem," Merkonen added.
Merkonen, Adeyemi, Oni and the 19 other applicants now have two weeks to sort out the legalities of their stay in South Africa. After that, should they fail to secure the correct documentation, they will again face deportation. The process of organising visas and permits has been criticised as overly complex, with many immigrants saying it takes up to three days of constant queuing simply to renew a visa. The constant delays have led to a number of instances of immigration companies and individuals taking the department of home affairs to court. Some of those being held at Lindela say they ended up there because of reasons that were beyond their control.
Nadine Nzapa, a security guard from the Democratic Republic of Congo who has been in South Africa for six years, has been kept at Lindela for three weeks, after she was arrested for not having a valid work permit. Nzapa says she had not renewed her papers because her employer had threatened to fire her if she took time off to sort out her visa.
"There was nothing I could do. I need money to feed my children and I could not take off work," a tearful Nzapa told the M&G. As a result of her detention, Nzapa's six children, the oldest of which is 13, have been left to fend for themselves at her home in Yeoville.
"I don't know if they are going to school or looking after themselves. My children sometimes phone me and say they were given food, from who I don't know," Nzapa said.
*Names changed for fears of victimisation
Source: Mail & Guardian
Yakubi Adeyemi* was placed on a plane bound for Nigeria in the early hours of March 28 -- but the flight was halted after an urgent court order was obtained by the Legal Resource Centre (LRC). Adeyemi is one of 22 men and women who had been held at Lindela for longer than the 120-day limit allowed for by the Immigration Act of 2002. After the failed bid to deport him, the department of home affairs was ordered by the South Gauteng High Court in Johannesburg to release the entire group, in accordance with the legislation. According to section 34 of the Act, an immigration officer may arrest an illegal foreigner without the need for a warrant and detain them for a period of no longer than 30 days, after which a subsequent 90-day order must be confirmed through a warrant issued by a magistrate. After 120 days of incarceration has elapsed, the Act stipulates all detainees should be released regardless of their official residence status. Additionally the Constitution states "everyone has the right not to be deprived of freedom arbitrarily or without just cause" -- a right afforded both to South Africans and foreigners.
"The department's behaviour [in trying to deport foreigners before the conclusion of the legal process] smacks of arrogance and indicates they are merely trying to prove a point as to who is in charge while people's dignity is violated and their livelihood is being put at risk," LRC attorney Naseema Fakir told the Mail & Guardian.
The LRC had on March 20 asked the court to order the state to release the group of foreigners. After earning a postponement in the case, the department of home affairs failed to appear in court on Thursday March 29, after which the court ordered the state to immediately release all applicants in the matter. However, in between court appearances the department had arranged to deport several applicants in the case. The LRC said it appeared that the haste with which the state tried to deport Adeyemi, who has two young children with his South African partner, was due to the fact that the department had already paid for his airline ticket -- before his case arrived in court.
"The department may look at this from a monetary point of view, but it is ridiculously traumatic for the individuals involved. There is no dignity in simply putting a person on a plane in order to get rid of them," Fakir said.
But the department of home affairs said it had been well within its rights to deport Adeyemi.
"There was no court order at the time the applicants were taken to OR Tambo International Airport to be deported. The order was granted at 5am on 29th March 2012. There was therefore no violation of the court order," the department said.
Ignoring court orders
But even after the court order stipulating immediate released was issued, another Nigerian detainee, Mogeni Oni*, was placed on a bus at Lindela ahead of a planned deportation. After emergency enquiries were made by the LRC as to why Oni was in the process of being deported, he was returned to the confinement area at Lindela. The 22 men and women were eventually released at 7pm on March 30 -- nearly 30 hours after the court order instructing immediate release was issued. The department of home affairs acknowledged that the 120-day limit for extended detention applied, but would not shoulder any blame for exceeding this period.
"The department works with resident embassies and high commissions in South Africa to verify the nationality of deportees and to process their travel documents. This process sometimes takes longer than 120 days," the department said.
The latest events follow a reported uprising at Lindela in which detainees, mainly of Nigerian and Ethiopian descent, were understood to have demanded a meeting with immigration officials after some were kept at the facility for more than nine months. After a violent confrontation, several internees were reported to have sustained serious injuries, with one understood to have been taken to hospital after the incident. After initially failing to respond to questions posed by the M&G on the unrest, the department eventually conceded that an "altercation" had occurred at Lindela but was "quickly brought under control" by officials at the centre. Earlier in March the LRC secured the release of a Nigerian and an Angolan who were unlawfully detained as illegal immigrants. The Nigerian, who had a valid work permit, was held for 114 days, while the Angolan was detained for 132 days without a warrant. The department has been accused of regarding deportation procedures with contempt.
"It seems as though they are truly a law unto themselves and court orders and the like have little effect on them," said Douglas Leresche, a project co-ordinator at People Against Suffering, Oppression and Poverty (PASSOP), an NGO working to protect and promote the rights of all refugees, asylum seekers and immigrants in South Africa.
While some of 22 foreigners involved in last week's incident are illegal immigrants, others say they have documents proving their stay in South Africa is legitimate. Damurah Mekonen* an Ethiopian national, businessman and resident of Durban for the past 11 years says he was arrested in late October while trying to have his residence permit renewed at Home Affairs offices in Glenwood. Mekonen said he was kept in Durban Westville prison for over a month before being transferred to Lindela, where he was kept for four months. He said no answers about his continued detention were forthcoming.
"These people know nothing. They simply arrest you and ask questions later. If you ask where they are taking you or why, they laugh at you," said Mekonen. "I am not a criminal and I have done nothing wrong. I am here legally and I pay taxes so I don't understand their problem," Merkonen added.
Merkonen, Adeyemi, Oni and the 19 other applicants now have two weeks to sort out the legalities of their stay in South Africa. After that, should they fail to secure the correct documentation, they will again face deportation. The process of organising visas and permits has been criticised as overly complex, with many immigrants saying it takes up to three days of constant queuing simply to renew a visa. The constant delays have led to a number of instances of immigration companies and individuals taking the department of home affairs to court. Some of those being held at Lindela say they ended up there because of reasons that were beyond their control.
Nadine Nzapa, a security guard from the Democratic Republic of Congo who has been in South Africa for six years, has been kept at Lindela for three weeks, after she was arrested for not having a valid work permit. Nzapa says she had not renewed her papers because her employer had threatened to fire her if she took time off to sort out her visa.
"There was nothing I could do. I need money to feed my children and I could not take off work," a tearful Nzapa told the M&G. As a result of her detention, Nzapa's six children, the oldest of which is 13, have been left to fend for themselves at her home in Yeoville.
"I don't know if they are going to school or looking after themselves. My children sometimes phone me and say they were given food, from who I don't know," Nzapa said.
*Names changed for fears of victimisation
Source: Mail & Guardian
Thursday, March 29, 2012
Cosatu: Secrecy Bill will create a 'police state'
Cosatu will be the first to challenge the Protection of State Information Bill in court because it risks turning South Africa into a security state again, general secretary Zwelinzima Vavi warned on Thursday. Vavi said that although the Bill was redrafted under pressure from the Congress of South African Trade Unions, the version passed by the National Assembly last year still raised the spectre of abuse of classification to conceal corruption.
He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.
Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.
"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."
Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."
Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".
Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.
Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.
Source: Mail & Guardian
He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.
Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.
"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."
Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."
Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".
Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.
Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.
Source: Mail & Guardian
Monday, March 12, 2012
Bizos: Secrecy Bill 'threatens values' of Constitution
Veteran human rights lawyer George Bizos argued in a submission to Parliament that the Protection of State Information Bill is unconstitutional on several counts. "The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in the Constitution," he wrote.
Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."
In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.
Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.
The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."
Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.
Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.
Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.
The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.
The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.
The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.
Source: Mail & Guardian
Bizos, from the Legal Resources Centre's constitutional litigation unit, prepared the submission on behalf of human rights organisation Passop. It is one of 293 written presentations sent to the National Council of Provinces' ad hoc committee processing the Bill after it was passed by the National Assembly last year amid a public outcry. Nelson Mandela's former defence lawyer enumerated seven flaws in the Bill, starting with the absence of a public interest defence. "We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in public interest."
In Bizos's view, the Bill would undermine the provisions of the Promotion of Access to Information Act (Paia) of 2000 and its status as the supreme law giving effect to section 32 of the Constitution, in which citizens' right to access to information held by the state is enshrined. Paia makes disclosure in the public interest mandatory in cases where the information would reveal the commission of a crime, or the existence of imminent public safety risk or environmental risk. Section five of Paia also states that it applies to the exclusion of any act that restricts disclosure or is materially inconsistent with its provisions. Yet, the Protection of State Information Bill in section 1(4) explicitly states that "despite" section five of Paia, it trumps any other law relating to classified information.
Bizos wrote: "Any proposed legislation that seeks to displace the clear provisions of Paia also violates section 32 of the Constitution and is thus unconstitutional. "The Bill's attempt to trump Paia, a constitutionally-mandated statute, is a further indication of the Bill's overall unconstitutionality." He notes that those who defend the absence of a public interest defence have argued that such a clause was unnecessary because the Bill criminalises wrongful classification.
The argument is wrong, Bizos said, because the draft law does not allow those prosecuted for disclosing state information to argue in defence that it was wrongly classified to begin with. "This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistleblowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms."
Constitutional law expert Pierre de Vos said he agreed with Bizos because the Bill was drafted in such a manner as to criminalise disclosure of classified information, regardless of whether the classification was lawful. Bizos also faulted the Bill for allowing the minister of state security to confer the power to classify information on other ministers. This usurps the principle of accountability enshrined in section one of the Constitution because it removes the oversight of a particular function from Parliament, and places it with the delegating minister. He went on to say that the legislation runs counter to criminal law by basing liability not on the accused's intention, but on the far lower standard of proof that he or she "ought to have known" they were disclosing a secret.
Bizos also said that imposing prison sentences of up to 25 years for the offences in the Bill is excessive and that the Classification Review Panel it seeks to establish will not be seen as independent or impartial. This was because a member of the panel could be removed by a majority vote in the National Assembly, raising a reasonable suspicion of political bias.
Finally, he said the Bill flouts the constitutionally-mandated Promotion of Just Administration Act by potentially ousting the jurisdiction of the high court to review classification -- which is an administrative act.
The submissions include a 20-page letter from public protector Thuli Madonsela, who warned that it jeopardises freedom of expression and her ability to do her job by preventing journalists and whistleblowers from reporting abuses.
The Congress of South African Trade Unions (Cosatu), in its contribution, calls for the inclusion of a public interest defence and foresaw the Bill would "worryingly" have the effect of "entrenching authority through a security state". Cosatu has, along with rights groups, media houses and opposition parties, threatened to challenge the Bill in the Constitutional Court if it is signed into law in its current form.
The ad hoc committee will meet on Wednesday to schedule further hearings on the Bill.
Source: Mail & Guardian
Tuesday, May 26, 2009
Xeno refugees 'cheated UN'
Some xenophobia refugees in Cape Town cheated the United Nations (UN) of relief funds last year, according to an affidavit filed in the Cape High Court. The affidavit by city Housing Director Hans Smit, forms the basis of an application for the eviction of just under 400 people from the Bluewaters safety site on the Cape Flats. They are the last refugees remaining on city-owned property.
Smit said the UN High Commissioner for Refugees had given financial assistance to people displaced by last year's wave of xenophobic violence, for relocation or reintegration in the communities they left. This had been R1 500 for single people, and R3 000 for families of more than one person, paid in installments. The payments were made to displaced foreign nationals (DFNs) only when they left the city-run safety camps.
"Shortly after the implementation of the scheme it was discovered that it was being abused by some DFNs who, by altering their names, fraudulently procured the payment of allowances to them repeatedly," Smit said. "In addition, it was discovered that some DFNs were returning to live in the camps even after they had collected their relocation allowances."
When this emerged, administration of the payments was taken away from the staff of the Cape Town Refugee Centre, a Non-Governmental Organisation, and transferred to the city's camp managers. The eviction application lists 236 refugees at Bluewaters by name, and asks for an order against them as well as anyone else living there. City spokesperson Pieter Cronje said the names listed on the order were those of the adults. Children brought the number at the site to 397.
Smit said in his affidavit that the city gave them notice in October last year - it wanted them off the property, meant to be a holiday camp for members of the public. Over 20 000 displaced people had already been reintegrated into the communities they had been living in, but the Bluewaters group had "steadfastly refused to move."
He said that by refusing to reintegrate or relocate, they were trying to gain an unfair advantage over people on the city's housing waiting list, which had a backlog of 400 000. Giving them houses would set a bad precedent, he said. From the beginning of June to September last year, the city had spent more than R120 million on catering for the displaced foreigners, Smit said.
When the case was called in the High Court this morning, advocate for the city Ncumisa Mayosi told Acting Judge Patrick Maqubela that the matter had originally been unopposed. However, the Legal Resources Centre (LRC) had now informed the city it was representing some of the refugees. She asked for, and was granted, a postponement to June 9 to allow the LRC to compile a list of its clients. She said the city intended to press ahead with an unopposed application in respect of those refugees not on the LRC list. Maqubela ordered the refugees pay the "wasted costs" of today’s proceedings.
Smit said the UN High Commissioner for Refugees had given financial assistance to people displaced by last year's wave of xenophobic violence, for relocation or reintegration in the communities they left. This had been R1 500 for single people, and R3 000 for families of more than one person, paid in installments. The payments were made to displaced foreign nationals (DFNs) only when they left the city-run safety camps.
"Shortly after the implementation of the scheme it was discovered that it was being abused by some DFNs who, by altering their names, fraudulently procured the payment of allowances to them repeatedly," Smit said. "In addition, it was discovered that some DFNs were returning to live in the camps even after they had collected their relocation allowances."
When this emerged, administration of the payments was taken away from the staff of the Cape Town Refugee Centre, a Non-Governmental Organisation, and transferred to the city's camp managers. The eviction application lists 236 refugees at Bluewaters by name, and asks for an order against them as well as anyone else living there. City spokesperson Pieter Cronje said the names listed on the order were those of the adults. Children brought the number at the site to 397.
Smit said in his affidavit that the city gave them notice in October last year - it wanted them off the property, meant to be a holiday camp for members of the public. Over 20 000 displaced people had already been reintegrated into the communities they had been living in, but the Bluewaters group had "steadfastly refused to move."
He said that by refusing to reintegrate or relocate, they were trying to gain an unfair advantage over people on the city's housing waiting list, which had a backlog of 400 000. Giving them houses would set a bad precedent, he said. From the beginning of June to September last year, the city had spent more than R120 million on catering for the displaced foreigners, Smit said.
When the case was called in the High Court this morning, advocate for the city Ncumisa Mayosi told Acting Judge Patrick Maqubela that the matter had originally been unopposed. However, the Legal Resources Centre (LRC) had now informed the city it was representing some of the refugees. She asked for, and was granted, a postponement to June 9 to allow the LRC to compile a list of its clients. She said the city intended to press ahead with an unopposed application in respect of those refugees not on the LRC list. Maqubela ordered the refugees pay the "wasted costs" of today’s proceedings.
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