Protection of Fundamental Rights Act, 1988 (Act 16 of 1988)

Country: 
Date of assent: 
02 August 1988
Commencement date: 
03 August 1988


Issue Addressed:

The Protection of Fundamental Rights Act was enacted to protect fundamental rights including “the right not to be induced or persuaded to: stop educational functions or activities; stay away from a place of employment or refrain from performing duties; or abstain from making use of or receiving any public service.” Further, it was enacted to outlaw “boycotts and worker stay-aways.” 

Originally, the law included Section 2. Section 2 covered “offences relating to certain fundamental rights,” including punishment for causing interruptions at educational institutions, staying away from a place of employment, or boycotting any industry. However, the law was challenged in the Namibian Supreme Court by the Namibia National Students Organisation (“NANSO”), with support from the Mineworkers Union of Namibia, the Namibia Food and Allied Workers’ Union, the Metal and Allied Namibian Workers’ Union, and the Namibian Public Workers’ Union. NANSO’s secretary had been charged under the Act, in addition to 29 other students by the end of the law’s first year of enactment. The plaintiffs argued that the Act was vague and “prohibit[ed] the legitimate discussions and activities of their organisations.” The court additionally found that the law exceeded the authority of Proclamation R101 of 1985 and was in conflict with the Bill of Rights. Proclamation R101 of 1985 is the South West African Legislative and Executive Authority Proclamation which brought the original, transitional government of Namibia into being. The law was also likely being used contrary to Article 21 of the Namibian Bill of Rights, which details fundamental freedoms. These fundamental freedoms include the freedom of speech and expression, thought and belief, association, withholding of labor, and practicing of any profession. Accordingly, Section 2 of the Act was deleted in 1989.

Summary of the Act:

The remainder of the Act is still in full force. Section 1 outlines definitions. The first is “educational institution” which is any school or institution registered or recognized under law and which provides education. This can include universities, technicons (vocational school), or colleges. The second is “the State” which is any representative authority established under Proclamation AG. 8 of 1980, also known as the Representative Authorities Proclamation, and any board or body established by law.

Section 3 discusses offenses relating to violence, injury, damage, harm, loss, or detriment. This section penalizes someone who does something to the detriment of another on account of the other person: (a) attending any class or lecture at an education institution or participating in any other activity at an educational institution; (b) calling on an industry to transact any business of lawful nature; (c) making use of a public service; (d) attending his place of employment to perform ordinary duties; or (e) intending to do any of the previous. A violator is someone who directly or indirectly makes use of or threatens to use violence, force, or restraint or threatens to inflict injury, damage, harm, or loss upon another person or that other person’s next of kin. If convicted, violators are liable to a maximum fine of 20,000 rands or imprisonment for up to 10 years, or both. 

Section 4 notes the rights of police officials, peace officers, or members of the South African Defense Force in relation to searching and entering premises, searching, and arresting and detaining persons. This section uses the definitions from the South African Criminal Procedure Act of 1977 for “police official” or “peace officer”. Police officers, peace officers, and members of the South African Defense Force shall have the right to enter and search any premises and to search, arrest, and detain any person. The Criminal Procedure Act’s provisions about entering and searching premises and searching, arresting, and detaining any persons shall apply when any police official, peace officer, or member of the South African Defense Force do the above-mentioned acts. Finally, any reference to a “peace officer” based on the Criminal Procedure Act of 1977 shall be construed as including a reference to members of the South African Defense Force. 

Section 5 identifies the short title of the Act.

Analysis:

Overall, the Act would benefit from less dense language. Each provision is packed with little details, long lists, and many commas that make it difficult for a layperson to decipher. Additionally, the Act’s numbering system changes throughout the Act. Section 3 uses lettered subsections, while Section 4 has numbered subsections. This should be updated and aligned. 

In Section 1, the definition of “educational institution” is repetitive. The definition refers to any “school or institution established, registered, or recognized by or under any law” and then additionally includes “any university, tehnicon, or college established by or under law.” This language can be clarified by simply saying “any school, institution, university, technicon, or college established, registered, or recognized by or under any law” and removing the second piece altogether. Additionally, part of the definition notes that it includes any institution where education is provided to “children or other persons.” It might be better to streamline this to just “education provided to any person.” Finally, the second definition of “the State” is no longer needed as that term is not used anywhere in the remaining provisions.

Section 3’s main provision is quite dense. This makes it incredibly difficult for laypeople to read, understand, and apply. It would be preferable to break this information down into separate sentences. Additionally, some portions of this provision are unclear or repetitive. For instance “by himself or any other person, directly or indirectly” seems to be addressing the same idea of someone who acts or causes an act to happen and can be simplified. Additionally, this portion of the text includes gendered language and should be updated to gender neutral pronouns. In Section 3(b) it is unclear what “calling on or having called on any undertaking or industry…” means. If this means someone who uses an industry/business, it may be better to use an active verb like “uses” or “contracts with.” Section 3(c) discusses public services as referred to in Section 2(c)(1). However, this section has been deleted. This leaves the language in Section 3(c) definition-less and refers to a portion of the law that is no longer in place. Another possible consideration is around the penalty. Adding a provision that increases the penalty for repeat offenses may help strengthen the Act and further emphasize the purpose of the Act to prevent coercion or corruption. Finally, overall, this section may benefit from language that broadens the scope of the provision. These offenses are outlined very narrowly related to education, business, public services, or employment. Including language to show that the offense “includes, but is not limited to” those outlined areas may help further the purpose of the Act which was to prevent coercion that would stop someone from engaging in their fundamental rights. 

Section 4(1) says that any police official, peace officer, or member of the South African Defense Force shall have the right to enter and search any premises and to search, arrest, and detain any person. The use of “any” - both in reference to law enforcement and other persons - is overly broad. There are no restrictions or contours on this right which makes it dangerous. This provision should be qualified to require, at a minimum, a warrant and/or probable cause that a crime was committed. Section 4(2) uses the language “mutatis mutandis”, Latin for “with things changed that should be changed.” However, it would be better to remove such “legalese” from the Act so that it is more easily read and understood by laypeople. As a general matter, the title of Section 4 is not helpful to understand what the section will discuss as it appears to be more about extending the Criminal Procedure Act than about the rights of law enforcement officers.

Author: 
Megha Mathur
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