VIOLATION OF THE CONSTITUTIONAL RIGHTS OF MR CHUMANI MAXWELE

The Centre for Constitutional Rights has requested the Human Rights Commission to investigate possible violations of the constitutional rights of Mr Chumani Maxwele and to take appropriate remedial action.  

 Mr Maxwele was arrested by the Police's Special Protection Unit on 10 February after he had made a rude gesture at the President's motorcade. Although the incident might appear to some to be quite banal it involves the violation of a number of fundamental human rights that are central to our Constitution and to the maintenance of a democratic society.  The rights that the Centre believes may have been violated include the following:

• The manner in which Mr Maxwele was seized from the street, bundled into a police vehicle, had his legs bound and his head covered with a black bag appear to have violated  his right to human dignity in terms of section 10 of the Constitution;
• His apparently unlawful arrest violated his freedom and security of person as guaranteed in section 12, including his right not to be deprived of freedom arbitrarily or without just cause; and not to be treated in a  degrading way;
• The action in searching his premises, apparently without a warrant, was a violation of Mr Maxwele's right to privacy in terms of section 14;
• The police may also have violated Mr Maxwele's right to freedom of expression in terms of section 16 which is limited only where it constitutes propaganda for war; incitement to imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.  Mr Maxwele's gesture cannot reasonably be regarded as falling under any of these exceptions;
• Mr Maxwele's right to peaceful and unarmed demonstration, in terms of section 17, may also have been violated. His gesture amounted to no more than a rude demonstration that  - as he later explained - he did not approve of the noise and disruption which the motorcade caused;  
• The police may have violated Mr Maxwele's right to make his own political choices in terms of section 19.  Their alleged action in forcing him to write a letter of apology to President Zuma would likewise be breach of section 19 and of the police's constitutional duty in terms of section 99 (7) (b) not to further the interest of a political party;
• Finally, the police may also have failed to respect Mr Maxwele's rights as a detained person in terms of section 35 (2).  Although he was detained for 24 hours, he was allegedly not offered any food, was prohibited from sleeping on the floor and was compelled to sit up on a chair.

These alleged violations of key provisions of the Bill of Rights are compounded by the fact that after they had had time to reflect the authorities continued to insist that there was nothing wrong with their behaviour.  The spokesperson of the Minister of Police,  Mr Zweli Mnisi, justified the arrest on the grounds that

• Mr Maxwele's gesture was synonymous with swearing and showing disrespect and that "no person is permitted to use foul language, swear at another individual, especially as such conduct may lead to promoting hate conduct in the Republic"; and that
• He allegedly "became aggressive and began to swear" at the police.   

Neither of these actions is per se illegal.  Mr Maxwele was apparently charged with crimen injuria, but the charge was withdrawn after he wrote an apology to President Zuma. It is difficult to see what grounds existed for a charge of crimen injuria against President Zuma in the first place because

• the President was not even aware of the incident when it occurred;
• the incident could not be regarded as being serious; and
• it would in any event be regarded as a fair political comment.  Indeed, if Mr Maxwele's action were regarded as crimen injuria there is hardly a cartoonist, journalist or political opponent of the President who would not be liable to be charged with a similar offence.

The issues involved in the Maxwele case are serious because they appear to undermine the foundational value in section 1 (c) of the supremacy of the Constitution and the rule of law; and because they ignore the state's core duty in section 7 (2) to "respect, protect, promote and fulfil the rights in the Bill of Rights.  The police actions also appear to be irreconcilable with sections 199 (5) and (7) (b) of the Constitution that require that "the security services must act, and must teach and require their members to act, in accordance with the Constitution and the law..." and that "neither the security services, nor any of their members, may in the performance of their functions ... (b) further in a partisan manner, any interest of a political party."

It is possible that the Police may have been motivated by genuine concern over the dignity of the Head of State.  However, the idea of ‘lèse majesté' - or any practice protecting the head of state from criticism or even ridicule - has no place whatsoever in our constitutional democracy.   Such attitudes open the way to the ‘big man ‘politics that have blighted many African countries - particularly when taken in flagrant disregard of the Constitution. Our Constitution contemplates a society that is premised on freedom of expression and the free flow of information and ideas. To this end, it expressly guarantees the right to free political activity and freedom of expression, which includes, inter alia, the freedom to criticise government and to demonstrate that disapproval.

The Centre has accordingly requested the HRC to investigate the Maxwele incident in terms of section 184(2)(a) of the Constitution and, should it find that Mr Maxwele's constitutional rights have, indeed, been violated, to take the following urgent steps,  in terms of section 184(2)(b) to secure appropriate redress:

• the Minister of Police should be required to acknowledge that he accepts the supremacy of the Constitution and rule the law in accordance with section 1 (c )  as well as the duty of the state in terms of section 7 (2)  to respect, protect, promote and fulfil the rights in the Bill of Rights;
• steps should be taken in terms of section 199 (5) to ensure that the South African Police Service acts, teaches and requires its members - and specifically members of the units involved - to act in accordance with the Constitution and the law; and that
• all those involved in this incident should make a full apology to Mr Maxwele for their unlawful and unconstitutional behaviour.

Statement issued by Adv Nikki de Havilland, Director of the Centre for Constitutional Rights, March 4 2010

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