The Free Market Foundation (FMF) has launched a report at a press briefing identifying the concerning unconstitutional nature of the proposed Tobacco Products and Electronic Delivery Systems Control Bill.
Authored by FMF Senior Associate Gary Moore and FMF Head of Policy Martin van Staden, the report, “Ministerial Power-Grab: How South Africa’s Tobacco Bill Undermines the Rule of Law”, analyses the Bill’s overly punitive provisions that impose restrictions on consumer choice and grant vague, unfettered discretion to the executive.
This follows a previous FMF report on the deficient public participation process that was followed during the Bill’s adoption.
The Tobacco Bill seeks to reduce the consumption of tobacco and “related products” through a range of draconian measures, which include a wholesale prohibition on advertising, standardised packaging, banning smoking in areas where self-employed people work (such as private homes), and prohibiting smoking on the outdoor stoop or verandah of a private dwelling.
“These prohibitions, especially when reaching into the home, are unjustifiable limitations of the fundamental right to human dignity, freedom and security of the person, and privacy,” says Moore.
The Bill further, in effect, grants the Minister of Health the unchecked power to introduce regulations prohibiting smoking, vaping, or the sale of tobacco and other products anywhere he may prescribe. These and other provisions of this nature are framed without criteria that the Minister must first comply with before issuing his regulations.
“The Constitutional Court has held that it is an important principle of the rule of law (which is a foundational value of the Constitution) that rules be articulated clearly and in a manner accessible to those governed by them,” says Moore.
The report also highlights that the Bill imposes excessive penalties on those who fail to comply with its restrictive provisions, further illustrating its punitive character. The Constitution prohibits government from subjecting South Africans to cruel, inhuman, or degrading treatment or punishment. As this Bill ultimately deals with lifestyle choices, the kinds of penalties it contemplates, for instance a R200,000 fine and/or up to five years in prison for smoking inside one’s own home, are necessarily unconstitutional.
“These provisions represent a serious erosion of constitutional principles. By criminalising private behaviour and concentrating power in the executive, the Bill undermines both personal freedom and the rule of law,” says Van Staden.
The FMF calls for the Bill to be abandoned or otherwise revised significantly, as its provisions are unjustifiable under the Constitution.
“Parliament should not abdicate its responsibility to the executive,” says Van Staden.
If the South African government desires an updated tobacco control law, it must introduce a significantly less restrictive bill that contains guardrails on the power of the executive.
“The state could enlist much less restrictive means than those contemplated in the Bill to achieve legitimate public health purposes,” concludes Moore.
Click here to view the full report.
This article first appeared on the Free Market Foundation website. Read it here.
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