Privacy and the Rule of Law

Posted July 27, 2015
Written by Mark Heyink
7/2015

South Africa’s most revered citizen and fervent champion of the democratic ideal, Nelson Mandela, stated in the Rivonia Trial that he cherished the ideal of a democratic and free society, he had fought for this and that it was an ideal that he hoped to live and to see realised, which thankfully he did. He also added “It is an ideal for which I am prepared to die”.

Democracy, the ideal for which Madiba was prepared to die has, as we have been reminded by Judge Dunstan Mlambo, its foundation in the rule of law. The apparent facilitation by senior people within government of the escape of President Omar al-Bashir from justice in flagrant contravention of a court order is the low point to date for the operation of the rule of law in the new South Africa. The actions of government in this regard have been widely condemned by legal experts locally and internationally. The condemnation of the Law Society of South Africa of the undermining of the rule of law and disregard by government of court orders, which is increasingly prevalent, must be wholeheartedly endorsed by all right thinking persons.

If this were the first time that constitutional guarantees and mechanisms designed to protect our constitutional democracy had been flaunted by the executive, the pleas of the difficulty of the situation government had placed itself in and the cries of “foul” against the International Criminal Court would perhaps have received greater sympathy and not have been seen as an excuse for government’s actions, which are quite simply an affront to the rule of law. Regrettably this is simply not the case. Likewise, assertions that human rights are important to the executive, as claimed in the Parliamentary debate on President al-Bashir’s flight from justice as well as the President’s utterances in this regard in presenting the Marikana Report, may ring true if government’s actions supported these assertions. Actions speak louder than words and unless the executive demonstrates its commitment to the rule of law, its already tattered credibility will become even more shredded.

What this has to do with the constitutional guarantee of privacy is that it offers government the opportunity to act properly in guaranteeing the human right of privacy to all citizens. Governments that are mindful of human rights have recognised the critical importance of the establishment of an independent regulator, empowered to regulate the use of personal information in the 21st century democracies. We are undergoing fundamental changes in our society as we transition from post-industrial laws and norms to an information society in which huge shifts can occur on a daily basis. Among the functions of the Regulator is to guide us in how information, in particular personal information, may be processed and to enforce the safeguards against the abuses that have grown exponentially as political and commercial interests, in the absence of these safeguards, have systematically ransacked the personal information of citizens.

The fact is that globally it is regulators who are providing the granularity to the framework legislation protecting personal information. They are in their own right important law makers whose duty is to be independent and subject only to the Constitution and to the law. As is stated in the Act, they must perform this duty impartially and exercise powers without fear, favour or prejudice. A point that was emphasised by Judge Mlambo in providing reasons of the court for the judgment that it reached in the al-Bashir case, and in his criticism of government’s disdain for the rule of law.

Therefore it is essential in the appointment of senior officers of the Regulator that these appointments must not be another case of cadre deployment of persons ill-qualified for the position. If government is sincere in its stated claims for the protection of human rights this is an opportunity to ensure that the rights of South Africa’s netizens and all of South Africa’s citizens who will benefit from the undoubted economic and social prosperity that the information economy promises to South Africa, by ensuring the development of the jurisprudence governing our information society is firmly founded in the principles enshrined in the Constitution. Those making the decision on the appointment of senior officers of the Regulator have a very important duty to our online future and it will have to be recognised by government, despite its unhappiness with decisions ranging from the Public Protector to courts, which have so often gone against it in recent years, that it is subject to the same laws as all of the citizens of this country. To use the words of the Honourable Deputy Minister of Justice in urging that the Rome Statute be reviewed in light of the perceived bias of the International Criminal Court “To have two standards of justice is mere hypocrisy”. Hopefully those in our government who appear to think there are two standards of law in South Africa, will heed these wise words.

Recommendations of candidates for appointment to the office of the Information Regulator have been called for. It is our duty to see that appropriate persons be appointed. The prescripts relating to the appointment are detailed in Section 41 of the Act.

While the Act indicates the qualifications required for senior officers of the Regulator, one that is not expressly articulated but is a quality which will determine both the success and quality of work done by the Regulator, is that of courage. Courage will be required to confront the dynamic and sometimes frightening changes that are occurring in our information economy. If we are to see the same constitutional guarantees that the Constitution promises applying to our online world, we will also need a courageous champion of our human rights. Let us hope that those charged with appointing the senior officers of the Regulator recognise that courage and passion will be necessary in navigating these unchartered waters which, as is the case at any unsettled and disruptive time, will be stormy. It will require the single-mindedness and courage demonstrated by Madima to ensure a free and democratic Internet.

©Mark Heyink 2015 www.privacyonline.co.za

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