A DUTY TO CRITICISE GOVERNMENT IN A CONSTITUTIONAL DEMOCRACY

Adv Johan Kruger, Director: Centre for Constitutional Rights

We live in a constitutional democracy where power is at all times limited by the Constitution, where government is subject to accountability, responsiveness and openness and where each citizen has the right – and duty – to participate in our democracy. We live in an open society protected by a Bill of Rights, including the rights to freedom of opinion and expression. This means all are free to criticise the government – especially when elected representatives fail to respond in an open and accountable manner to the trust placed in them by the electorate.

Freedom of expression, of course, does not allow for statements that would contravene the reasonable limitations in section 16 of the Constitution. However, justified criticism aimed at pointing out failures of governance is a necessity in a multi-party democracy. It is not only reserved for election time, but should be continuous, vigorous and frank. Moreover, it is not only reserved for high-level delegations meeting during closed-door indabas, lekgotlas and forums. It is the right of individuals, groups and legal entities, to be exercised vocally and publicly – even if it offends the government.

Given the society we live in, the recent outcry by the ruling African National Congress (ANC) about a First National Bank (FNB) advertisement campaign – which included some comments that were critical of government – is a cause for apprehension. In its campaign, FNB appears to be criticising the government for endemic corruption, a failed education system, high crime rates and possibly every other failure of governance that concerns most South Africans. The bank has, however, subsequently stated that its now controversial campaign was not intended as criticism of government, but was rather aimed at “galvanising” the nation into working together to address these problems.

In turn, the ANC contended that the campaign was not “an advert” but “a political statement” and “an attack on the president, his ministers and government as a whole“. The ANC Youth League said the campaign “[declared] war on the democratically elected government of South Africa“. The latter was furthermore of the opinion that “business has been provided many opportunities to raise issues with the ANC but to do this on a public platform in such a manner is treacherous and borders on treason“.

Whether the FNB-campaign was aimed at criticising the government is neither here nor there. It may well be a political statement, an embarrassment to government or just a marketing stunt gone wrong. Be that as it may, what is of concern is the ANC’s apparent view that neither citizens nor companies like FNB – that are corporate citizens – have no right to criticise the government.

Government and its representatives are accountable to the public. As such the public – including corporate entities – is entitled to know what the government is doing in fulfilling its duties. The public also has a right to call on government and its representatives to explain their conduct. In Mthembi-Mahanyele v Mail & Guardian Ltd & Another, the Supreme Court of Appeal held that if the government and its representatives fail, without justification, to explain their conduct, “they must bear the criticism and comment that their conduct attracts, provided of course that it is warranted in the circumstances and not actuated by malice“. In order to hold the government accountable to the public, the Court also held that “freedom of expression in political discourse is necessary” so as to allow for “robust and frank comment in the interest of keeping members of society informed about what Government does“. Freedom of expression, the Court found, included the “freedom to discuss and criticise Government – the country’s affairs” as well as “the freedom to discuss the conduct of individual Cabinet Ministers“.

The Constitutional Court has also, on more than one occasion, expressed itself on the right to criticise the government. In Minister of Health & Another v New Clicks South Africa, the Court held that “when exercising judicial review the Courts will give appropriate weight to the fact that the Parliamentary system promotes political accountability and that we live in an open society in which all are free to criticise acts of government. Nevertheless, a constitutional democracy requires more than the right to criticise the public authorities after the event.” The Court echoed the same sentiment in Doctors for Life International v Speaker of the National Assembly & Others.

In the Matatiele-matter, Justice Sachs remarked that the “notion that ‘government knows best…is no longer compatible with democratic government based on the rule of law as envisaged by our Constitution“. The government and its elected representatives must be able to explain and justify their decisions and actions, respond to and be accessible to the people and conduct the business of governance in an open and transparent manner. Whether it is why R250 million of taxpayers’ money is being spent on the private residence of the President or why R65 million is spent on upgrading ministers and deputy ministers’ official residencies while millions of South African live without the most basic housing, sanitation and water; or why more than a quarter of South Africans are unemployed and the basic education system is in shambles. It is a constitutional right and requirement of all citizens, including corporate citizens, to hold their representatives responsible for actions and inactions. As such, criticising the government for its failure to perform adequately according to the expectations of the people – regardless of how vocal and candid this criticism may be – is not treacherous, illegal or immoral. It is a constitutional duty.