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Provincial government attempts to silence criticism of health services by legislative member

(FXI/IFEX) - The following is an FXI press release:

FXI concerned about Gauteng Provincial Government's attempt to curtail MPL Jack Bloom's freedom of expression

The Freedom of Expression Institute (FXI) is concerned about attempts by the Gauteng Provincial Government to curtail the freedom of expression of a Member of the Provincial Legislature (MPL) for the Democratic Alliance (DA), Jack Bloom, who has been visiting public health facilities in the province in response to complaints by members of the public. This is the latest in a series of incidents that confirm the FXI's view that freedom of expression in the public health service is under pressure.

Tomorrow, Bloom will meet with the Provincial Government's Integrity Committee to discuss a complaint from the MEC for Health, Brian Hlongwa (dated 17 July 2007), that Bloom was making "private visits" to provincial health facilities and "interrogating" staff members and officials of the Gauteng Department of Health. Hlongwa argued in the letter that these visits have led to health officials feeling intimidated by his unannounced presence, who have to divert valuable time and energy to his "private interrogation". Hlongwa argued that these visits are "highly irregular and detrimental to the delivery of quality health care to the people of the province". He further stated that "no member of the Legislature has the right to demand of officials through unofficial or private channels to provide him with answers or information", and that Bloom has ample channels to receive the information he seeks. Hlongwa concluded the letter by stating that "if any MPL wish to visit any facility for the purposes of gathering information, then they are required to inform his office in advance".

Hlongwa's arguments are problematic, and seem to be an attempt to control Bloom's activities in speaking to staff and patients at the province's health facilities. Attempts to circumscribe his ability to visit hospitals and ask questions is an unreasonable limitation on his right to freedom of expression and his ability to gather information, as well as the right to freedom of expression of health workers and patients. Rather than preventing MPL's from taking the initiative and going and see for themselves what is going on in public health facilities, this behaviour should be encouraged.

Hlongwa also seeks to prescribe how MPLs such as Bloom should exercise their oversight function, which raises tricky questions about the separation of powers. It is not for the Executive to act as gatekeepers of MPLs' oversight activities, as this would amount to the "tail" of the Executive wagging the "dog" of the Legislature, and may lead to a situation where the Executive uses its power to prevent information from reaching MPLs that could potentially place the MEC in a bad light.

Hlongwa argued in his letter that "no member of the Legislature has the right to demand of officials through unofficial or private channels to provide him with answers and information", and states that Bloom's visits are in contravention of Gauteng Standing Rules on Oversight. The FXI does not agree with Hlongwa's reading of the rules, which state that they are a guide to the Legislature in fulfilling its oversight role. It then sets out procedures for the exercise of the oversight function, which include questions, urgent debates and other activities, but makes it clear that this is not a closed list of activities that contribute to effective oversight.

This implies that MPLs can exercise their discretion about other activities that contribute to oversight, even though they may not be on the list. Bloom exercised his discretion.

Also, it is not clear why Hlongwa considers Bloom's visits to be in his private capacity, as clearly he was investigating conditions in public health institutions in his public capacity. The fact that he made these visits in response to complaints from members of the public means that they were not self-initiated, self-serving actions taken on a whim, which further underscores the public nature of his visits.

The FXI accepts that there should be limits on how MPLs exercise their oversight function, but those limits should be narrowly construed, reasonable and justifiable. MPLs should not engage in behaviour that constitutes a substantial disruption of the activities of the public service. Also, freedom of expression in the public service can be limited if officials publicly comment to the prejudice of the administration of any national or provincial department: a strict test that can also usefully be applied in this case. It is not clear from Hlongwa's letter that Blooms actions are disruptive or prejudicial: merely visiting public health facilities and asking questions is not, in and of itself, disruptive.

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