The Freedom of Expression Institute’s (FXI) intended court challenge to provisions of the Electoral Act and the Regulation of Gatherings Act will turn on whether limitations imposed by the laws are deemed ”reasonable and justifiable in an open and democratic society”, legal experts say. But they express doubt about the likelihood of the challenge succeeding.
The FXI this week announced that it would launch a Constitutional Court action to have the laws ruled unconstitutional. Last week 60 members of the Landless People’s Movement (LPM) were arrested on election day for allegedly contravening provisions of these laws.
”The [Regulation of] Gatherings Act has unwittingly resulted in providing the police and local governments the right to grant or not grant permission for a gathering,” FXI spokesperson Simon Kinani Ndungu told the Mail & Guardian.
”In terms of the Act, the local government and the police are supposed to refuse permission only if they do not have enough resources to deal with the march or demonstration. That [proving they have resources] should be a factual inquiry only.”
The FXI’s misgivings with the Electoral Act starts with section 108 (a). This is ”patently unconstitutional”, Ndungu said, because it places a blanket ban on demonstrations on an election day. ”It freezes the right to assemble.”
Ndungu said the institute would also argue against the constitutionality of section 108 (b), which disallows demonstrations within a 200m radius of a polling station.
Legal experts consulted by the M&G were doubtful that the FXI case would succeed. One who declined to be named for professional reasons said: ”Section 108 of the Electoral Act prohibits persons on voting day to take part in any political meeting, march, demonstration or other political event; or engage in any political activity, other than casting a vote, in the area within the boundary of a voting station.
”Again, section 87 states that no person may compel or unlawfully persuade any person to register or not to register as a voter; to vote or not to vote,” he said.
”Apparently the [LPM] wanted to demonstrate outside a poling station and prevent people from voting, which was clearly in conflict with the provisions of the Electoral Act.
”Now, the question to be answered by the court is whether their demonstration was in violation of the Electoral Act, and whether their action was hampering or disrupting the elections.
”Though I’m not really on top of the [details of the FXI’s case] I think their rights to freedom of expression, assembly, demonstration, picket and petition are guaranteed. But in their enjoyment of those rights they should not infringe on the other people’s enjoyment of [their] rights.
”No right in the Constitution is absolute, hence we have a limitation clause [section 36]. There is a saying that your rights end at the tip of your nose. The state will have to justify that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and so forth, including the nature of the right and the nature and extent of the limitation.
”In this regard, I think the purpose of the limitation was to ensure free and fair elections and to ensure that people who wanted to vote were not intimidated and were allowed to exercise their right to vote entrenched in the Constitution.”