THE RIGHT TO BE WRONG

I was recently invited by the Parliamentary Portfolio Committee on Water and Environmental Affairs to make an oral submission on the South African Weather Service Amendment Bill.

The Portfolio Committee met in the old National Assembly chamber, with its green leather benches and dark wooden panels. For 84 years this room was the repository of political sovereignty.  The politicians who occupied these benches could - and did - pass any legislation that they liked.  There was no consultation with the millions of South Africans whose lives they affected and there was no appeal against the strictures that they imposed.

Now, the tooled green leather desk where order papers had previously been stacked, was covered - somewhat irreverently, but very democratically - with cellophane-wrapped sandwich platters and plastic bottles of fruit juice.

Sovereignty no longer resided in this chamber - or even - in the new National Assembly chamber next door. It now resided in the well-thumbed booklet that I had in my pocket - the Constitution of the Republic of South Africa.

The public was no longer excluded from the legislative process: instead, Parliament was required by the Constitution to make it part of the debate. I was there because, in our opinion, the legislation being considered by the committee failed to meet important requirements in my little booklet.

In particular, the bill laid down severe penalties - imprisonment of up to five years or fines of up to five million rand - for anyone a) who issued a severe weather or air pollution-related warning without the necessary written permission from the Weather Service; b) who supplied "false or misleading information" about the Weather Service; or c) who "unlawfully, intentionally or negligently" committed "any act which detrimentally affects or is likely to detrimentally affect the Weather Service."

By the time I gave my oral submission, the government had already conceded the need to redraft the sub-section that prohibited others from issuing severe weather warnings.  The intention had not been to prevent bona fide warnings but to combat potentially harmful and malicious hoaxes.

However, we were still concerned over the sub-sections that prohibited the dissemination of false or misleading information and action that might detrimentally affect the Weather Service. The Chairperson, Johnny de Lange, was astounded. The FW de Klerk Foundation was the only organisation that had objected to these sections!  What, he asked incredulously, did we have against measures to prohibit false and misleading information?

I replied that what was false or misleading was often in the eye of the beholder.  I said that if a similar provision were applied to the Office of the President it would stifle political debate and have a catastrophic impact on our constitutional democracy.

There is hardly a news report or political commentary that does not include somewhere some statement that government might regard as false or misleading. The essence of political debate is often to determine what is, or is not, false or true.  For example, the government no doubt thinks that it is false and misleading for critics to state that the Protection of State Information Bill is intended to stop the public from finding out about corruption.

Can one imagine the chilling effect on editors and commentators were they to feel the need to excise from their articles and statements anything that the government might regard as false or misleading - or face the risk of going to jail for five years?

‘But' said Chairperson De Lange "those are the maximum penalties - and the courts would have to decide."  Indeed they would, but by that time, the journalist would have been arrested, imprisoned, released on bail and had his or her life severely disrupted. 

It is for such reasons that the only limitations placed by the Constitution on freedom of expression are  propaganda for war; incitement of iminent violence; and advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. 

The endurance of what we might regard as false and misleading attacks has always been an integral part of political debate. Those who believe that they have been maligned can sue for libel or complain to the press ombudsman.  In most cases, however, they will just have to roll with the punches. Freedom of expression includes the right of others to be wrong.

Also, it is often quite legitimate to take action that might be to the detriment of government organisations. Exposure of corruption; criticism of policy; demonstrations outside government offices or wildcat strikes might all be construed as detrimental actions and thus incur draconian penalties. "Such actions" Chairperson De Lange pointed out, "would have to be unlawful, intentional or arise from negligence".

However, if such actions are unlawful their perpetrators should be prosecuted under the laws that they have broken; if they are negligent, those responsible should be sued for damages; if they are neither unlawful nor negligent, those involved might well be protected by the rights to freedom of expression and free political activity.

Government departments should not be protected by a palisade of draconian penalties from the cut and thrust of debate and legitimate political activity. The Weather Service is one of the most innocuous organs of state and it is unlikely to be the subject of political controversy. However, if the principles involved in the amendment bill were ever applied to all departments they would seriously undermine our rights to freedom of expression and free political activity.

The unacceptability of the penalty provisions in the bill is, of course, not the fault of the Weather Service. The problem lies with the government's law advisers who should never have permitted such unconstitutional provisions to be included in what should have been an entirely innocuous piece of legislation. 

In the meantime, the system functions. As Chairperson De Lange observed the purpose of the hearings was to develop the best possible legislation in the interest of all South Africans. Let's hope that it does and that all three penalty provisions are withdrawn or made constitutionally compliant. We South Africans are fortunate to have such an open parliamentary system - and to enjoy the rights in my little pocket constitution. We must do everything we can to protect them.

Dave Steward is Executive Director of the F W de Klerk Foundation

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