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Civil liberties in a constitutional democracy

Opinion & Analysis
Let us imagine a country that has partly emerged from a troublesome governance history characterised by despotism and regular elections with outcomes that are predictable.

Let us imagine a country that has partly emerged from a troublesome governance history characterised by despotism and regular elections with outcomes that are predictable. The country in the last few years has come up with a Constitution that guarantees civil liberties, which the ruling party grumbles about. Hunger and mass unemployment and, as a result, poverty stalk the land. The leadership leads affluent lives amid this sea of sickening poverty.

Guest Column: MATSHOBANA NCUBE

Let us imagine that amid the hustle and bustle, the ruling elite has its own problems. A senior member of the ruling elite has been under investigation by some State agency for alleged corruption.

One afternoon, he struts away to the golf course. He has a game of golf to play with his friends. He spends the day playing golf. While he is at hole 7, members of the State agency that was investigating him arrive at the golf course and ask him to step away from his friends. A member of the agency tells him he is under arrest. He discovers that the said member is a police officer seconded to the agency.

The senior member is, of course, perturbed by this act and is embarrassed of being arrested in front of his friends. He, thus, pulls aside the fellow that seems to be in charge of the whole operation. He negotiates that since this is a Friday, he will come through to their office first thing on Monday morning so that he can be taken to court. The fellow agrees and off they go.

The senior member of the ruling elite immediately calls it a day and proceeds to hunt down his attorney. They agree to meet at the attorney’s office in the city centre. They go through the motions of instructions and examining the circumstances of his matter. They agree that the “arrest” was wrong and, thus, agree that something has to be done about it.

The attorney, as is the habit of attorneys all over the world, finally recommends that they have to file an urgent application with the apex court. The senior official gives him the green light. They immediately get down to drawing up the papers and the attorney’s secretary binds the papers up for filing at court.

Since it is late in the evening, the attorney had to go through the motion of getting in touch with the registrar of the Constitutional Court and indicated that he wanted to bring an urgent motion before the court. The registrar has to call the chief justice the State’s representative. The registrar gets the chief justice to the court and the attorneys, for both parties, as is customary, engage in a verbal duel.

At the end of such contestation, the chief justice says he is convinced that there is a likelihood of a violation of the senior government man’s rights, most specifically his right to liberty. He issues an injunction stopping the appearance of the man in court pending the determination of the lawfulness of the arrest.

Later in mid year, the matter is set down for confirmation or discharge of the provisional order made by the former chief justice. The new chief justice has to preside over the matter together with eight other judges. These make up the apex court.

On the date of the hearing of the matter, the attorney for the State in argument, complains why the senior member is afraid of going to court if he is innocent. The chief justice is reported to have asked why he did not go appear at the Magistrates’ Court, challenge his arrest there than come to the apex court.

A perusal of the country’s Constitution reveals some striking facts. First, the apex court is enjoined in section 165(1)(c) to safeguard human rights and freedoms and the rule of law. These freedoms are outlined in Chapter 4 of that country’s Constitution. In Chapter 1, section 3(1)(b) it is clearly spelt out that the country is founded on the rule of law among other values. The rule of law proscription requires that the State agents and officials, in whatever they do, act in accordance with and in terms of an existing law.

Secondly, in section 49(1) of that country’s Constitution, everyone is guaranteed the right to personal liberty. Section 49(1)(b) specifically outlaws the arbitrary deprivation of liberty or deprivation without just cause.

These provisions speak to some fundamental aspects of that right. Firstly, everyone has a right to their liberty; secondly, such a right cannot be interfered with arbitrarily. This part speaks to instances, where another person or institution is not allowed at law to interfere with one’s liberty in a capricious manner. That will happen where, for instance, members of the militia of a political party that has no authority to arrest, in fact, arrest or detain you for their own selfish political reasons.

There is yet another aspect to the right; deprivation without just cause. This will occur, for instance, if a person who has the authority to interfere with your right where it is apparent that there is no legal basis or cause to do so, actually does. For instance, a complainant reports a matter to the police alleging that a party to a contract has failed to fulfil the contract terms. If the police were to act on such a complaint and arrest the party allegedly in default, they are acting without just cause as they can never arrest a person for breach of contract.

Thirdly, section 255(3) of that country’s Constitution requires the government to ensure that there is in place a law or other means through which the investigation agency (that purported to arrest the senior official) recommend an arrest. Clearly the agency is required to recommend an arrest and not to carry out an arrest itself. The meaning of that provision is without a doubt as clear as water in a test-tube. The agency has no powers of arrest and can never carry out an arrest.

What is, however, clear is that the government did not hearken to the counsel by the supreme law to cobble up a law or other means that will provide for the agency’s arrest recommendation. This speaks to the rule of law. By what means could the agency arrest or recommend an arrest in the absence of a law to that effect?

If the agency was to carry out an arrest they would be acting illegally whether they are doing so in terms of an officer, who is now part of the agency or by its own officials. An arrest done in such circumstances should obviously spark a constitutional inquiry. The agency clearly cannot take the person, whose liberty they have arbitrarily deprived, to appear before a magistrate. To do so will create in that country a lawless nation. This is because in the first place, not every Jake or Jill can bring before a magistrate a person for remand.

It cannot be gainsaid that such an act is unlawful and unconstitutional. Such a fact is self evident to any legally trained person. Such conduct cannot in any way be defended as it poses a threat to the existence of a constitutional order. It attacks the very foundation of the constitutional system of that country.

A person, who has been the victim of such conduct, is in terms of the supreme law of that country legally permitted to challenge that conduct at the apex court. This is because section 167(5)(a) of the Constitution of that country provides for bringing of a matter directly to the constitutional court.

This right to bring a matter to the apex court directly is grounded on the fact that it is in the interest of justice to do so. In the ordinary course of things, such a move should be coupled with the grant of leave (permission in simple terms) of that same court. In other circumstances, it is permissible to come without leave.

One cannot imagine a fitting instance where it is really in the interest of justice to bring, without leave, a breach of fundamental right and freedom to the apex court directly than being arrested by an organisation that is shorn explicitly of any arresting powers. No affront and assault on the Constitution can be worse than where a State entity becomes a law unto itself and behaves like a loose cannon, trampling on people’s rights without let or hindrance.

In essence, all should respect the constitution, both accuser and accused. The constitution is the bulwark that creates limited government. To allow otherwise will be to create chaos, which is a recipe for worse. A limited government is the panacea of the existence of civil liberties in a constitutional democracy. They have to be guarded jealously by all courts.

Matshobana Ncube writes in personal capacity.