FMF Policy Brief
Summary
By October 2023 several censorious or repressive laws were in force, and several proposed laws (bills) were in various stages of adoption.
What these measures have in common is that they either explicitly empower (or even require) government to engage in censorious or repressive conduct toward non-governmental organisations and even commercial entities (broadly, civil society) that express views or peacefully and persuasively advocate policy alternatives to those embraced by the incumbent government, or they implicitly allow government to do so.
The laws herein considered that have already been enacted are the Equality Act (2000), the Terrorism Act (2004), and the Anti-Money Laundering Act (2022). The bills yet to become law are the Expropriation Bill (2020), the Equality Amendment Bill (2021), the Tobacco Bill (2022), the Hate Speech Bill (2023), and the Spy Bill (2023).
These measures, taken in isolation, would do harm to constitutional rights and freedoms, but taken together threaten the very rules of South Africa’s democratic game.
While it would be a significant escalation if government in fact utilised the repressive powers it has granted itself in terms of these measures – it has hitherto made scant use of them – the fact that it has not is immaterial. The presence of measures of this nature on the Statute Book is reason enough to give democrats and watchdogs pause.
The measures considered in this policy brief should be legislatively or judicially undone. Failing that, civil society should prepare itself to constitutionally resist any harms that could befall it if (or when) the government begins operationalising what it is empowered to do.
