Defend Truth


Fake news, conspiracy theories and the threat to our constitutional democracy 


Muhammad Zakaria (@ArbstrakZak is an advocate at the Durban Bar and has an interest in constitutional law. He is a former law clerk of the Constitutional Court and former junior researcher at SECTION27.

We each have a role to play in upholding the Constitution – it’s your civic duty to check and verify and to ask questions before merely sharing information.

The coronavirus has left us all feeling anxious. The accompanying lockdown has dried up incomes, exposed existing inequalities and left us all living in the most uncertain of times.

But South Africans, like many other nations, are also dealing with another dimension: fake news, misinformation and conspiracy theories that are running riot and adding to the confusion. 

The stories shared on WhatsApp and other social media have oscillated between pure quackery to the conspiratorial. First came the “solution”. 

Household items from garlic to lemon and baking soda cocktails and hand dryers have all had a chance to shine as daily additions to “solving” coronavirus. 

Then came the panic-peddlers who warned that major food companies would stop food manufacturing when the lockdown began , culminating in panic-buying. 

But it did not stop there. We also saw 5G theories as a source of the virus circulating. 

Then came the racial baiting. 

Claims began circulating on Facebook of an ANC-sanctioned government ban on aid for white people. White people would be denied accessing social grants as well as food parcels, they said. 

And then, as if part of a script, that the country was being groomed for a dictatorship went mainstream. 

Needless to say, none of this can be good for a constitutional democracy. The vehement and rapid spread of misinformation, especially during a pandemic, frustrates the achievement of other rights and protections and has the potential to undermine and corrode our constitutional democracy over time. 

This is not about censorship, but rather about civic responsibility. Government has been a den of corruption for many years and this adds to the layer for distrust enveloping their every move. The manifestation of this mistrust is a type of deviance; a refusal to wash hands, refusal to social distance, or scepticism about vaccines. 

These are destructive and harmful behaviours. 

And when all this misinformation combines to become conspiratorial, these actions ultimately delegitimise the Constitution. 

This is not to suggest that the government or scientists should be given a free pass. It is within our rights mandated by the Constitution to question. We have a right to lawful, reasonable and procedurally fair decision-making that affects any or all of our rights. We have a right to know that law and conduct are rational, reasonable and are proportional to the purpose for which they are made. 

But conspiratorial thinking has no intent to understand. It does not use the Constitution as litmus paper. Instead, it seeks to immediately discount the legitimacy of the core values that the state is founded on: the supremacy of the Constitution and the rule of law. 

It does not accept that there are checks and balances within the Constitution. 

And that the State ought to be held accountable against what is prescribed in the Constitution. It ignores the obligations of the state to be open, responsive and accountable to its population. 

And it discounts the efforts the media and civil society undertake in holding the state accountable.

It is not easy to understand why fake news spreads so easily. But studies suggest that it is linked to citizens hoping to recapture a sense of control over their lives. 

In a recent 2017 study by the University of Kent , researchers found that the belief in conspiracy theories appears to be driven by the need to understand one’s environment; the need to be safe and in control of a situation; and the need to maintain a positive image of one’s self and one’s social group. While this study does not make findings on whether conspiracy theories quench this thirst, it does suggest that the need to do so is more appealing than satisfying. 

South Africa has already battled with conspiracy theories in the form of AIDS denialism. During the early 2000s, conspiratorial thinking by the state informed the public’s reaction to a virus. Access to healthcare was withheld. This led to an uncontrollable increase in infection and mortality rates. Denying the existence of a link to AIDS, and therefore denying access to treatment, resulted in many people dying. We learnt that giving in to conspiracies like “HIV does not cause AIDS” resulted in a breakdown in constitutionalism. 

The Constitutional Court reminded the Mbeki administration that it had an obligation to take reasonable steps to progressively realise access to healthcare services. In that case, the prevention of mother-to-child HIV transmission.

The government has an obligation to ensure accountability, responsiveness and openness and its administration must be governed by principles of transparency by providing the public with timely, accessible and accurate information. This is over and above the target of the government, during this pandemic, to provide, within state budgets, access to healthcare facilities. 

The government has taken a different, more scientific stance than it did during AIDS denialism. But this is not enough. Because without open, accessible, responsive and rational reasons for why the government is taking the steps it does, its people will still be left insecure and wondering. 

For example, the government has taken steps to curb the spread of fake news by criminalising its dissemination. This measure has faced criticism because in a time of a national crisis, international law dictates that curbing free speech (and other rights) may only be done in a manner that is strictly necessary, reasonable and proportional to what the government is trying to achieve. It also does not consider less criminal, and more administrative sanctions. 

Another example is the concerns about the overreach of the state, including surveillance. The challenge to the state using telecommunication as a measure to track the virus is a serious invasion of privacy. Because of useful and constitutional means of challenging the legitimacy of such regulations, the regulations were amended and reflected a lesser, but still concerning, infringement on privacy rights. 

The government has taken some steps to curb fake news, including adding a tab on its website, or by Ministers tweeting about it, through press briefings or court challenges, but when compared to the barrage of fake news and conspiracies that are tracked by independent fact-checking institutions like Africa Check, government’s attempts to be responsive to the anxieties of its people are wanting. 

But what about our civic duty to check and verify and to ask questions before merely sharing? Surely we have a role in upholding our Constitution, too? DM/MC


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