Openness and accountability – values contained in Section 1 of South Africa’s Constitution and described by South Africa’s Constitutional Court as the lifeblood of democracy – are not merely ends in themselves. They are vital to achieving a society based on equality and human dignity as envisioned by the Constitution.
The LRC seeks to integrate this work across the LRC’s other focus areas, contemplating openness and accountability in a proactive, strategic, and systemic manner and working to ensure that this constitutional vision becomes a reality.
The LRC’s Openness and Accountability work within South Africa involves three specific themes:
- Information rights, including free speech, privacy, and mass and targeted surveillance;
- Protest and policing, including the right to peaceful protest, police reform, and appropriate police oversight; and
- Safeguarding public institutions, including strengthening and ensuring the structural independence of key democratic institutions and the accountability of public officials.
On the regional and international levels, the LRC engages with the African Commission on Human and Peoples’ Rights and with the United Nations, often in collaboration with other civil society organizations. The LRC’s work with the International Network of Civil Liberty Organizations enhances global efforts to maintain an appropriate environment for freedom of expression and the protection and promotion of social protest.
One example of the LRC’s work in South Africa involves a public gatherings landmark ruling of the Western Cape High Court in January of 2018:
- Section 12 (1) (a) of the Regulation of Gatherings Act prohibits any group from convening a gathering of fifteen people or more without giving notice. The penalty for contravention is one year imprisonment, a fine, or both.
- In September of 2013, the Social Justice Coalition (SJC) organized a protest outside the Mayor’s office in Cape Town, but it neglected to give notice to the municipality. After SJC activists were convicted in Magistrate’s Court and released, the SJC decided to challenge the constitutionality of the Act. The LRC represented the SJC in court. The South African Police Service (SAPS) challenged the appeal, but the South African government agreed to abide by the High Court’s decision.
- The Western High Court accepted SAPS arguments that the notice requirement was simple and straight forward and would allow adequate deployment of police to protests. However, the Court found that the criminal sanction, which could result in imprisonment and impact the future study and employment of protesters, was disproportionate and had a chilling effect upon the right to freedom of assembly. The High Court noted the central importance of this right to democracy and of giving “voice to the voiceless” in society. The High Court noted that the SJC had engaged in protest only after a long and unresolved dispute with the city of Cape Town over the access to sanitation services of working class communities. And the High Court noted other less restrictive penalties, such as an administrative fine, that the government could impose instead.
- The High Court ruled that the Act is disproportionate and therefore unconstitutional, setting aside the convictions of SJC’s activists and upholding the appeal. The decision must now be confirmed by South Africa’s Constitutional Court.