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Simon Delaney, Attorney at the Freedom of Expression Institute Law Clinic Human rights organisations have documented a global crackdown on civil liberties since the war on terror began, as governments implement laws related to the monitoring of citizens, powers of arrest and detention without trial. The age-old battle between repression and freedom is nothing new and nowhere is this tension more apparent than in the right to protest. In South Africa, a much-hailed Constitution guarantees that right peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions, but in practice this right is severely restricted. The discord between the theoretical guarantee of the right to protest and the State's actions is stark.
6000 protests were officially recorded during the 2004/05 financial year of which almost 1000 were banned. Apart from the fact that 15 protests are being held per day somewhere in South Africa – besides the number of unrecorded protests - the shocking statistic is the number of banned protests, given that the Regulation of Gatherings Act makes it almost virtually impossible for authorities to justify banning a protest. A nation-wide research report released this week by the Freedom of Expression Institute (FXI) reflects the familiar refrain of outrage over poor service delivery and incompetent local government. A disturbing pattern emerges from the research: activists that oppose the government’s macro-economic strategy and their communities’ slide into deeper poverty and misery are finding themselves isolated and targeted by local municipalities and its law enforcement machinery. In the process they are denied their constitutional rights to freedom of expression and assembly. Police officers are often ignorant of the Gatherings Act or, more worryingly, abuse the Act to prevent people from protesting and marching in public. The Gatherings Act vests in the police the power to issue blanket prohibitions, without reason, on a gathering for which less than 48 hours notice is given. This leaves officials with an unfettered discretion to ban a gathering organized on short notice on the pretence of ‘maintaining order’. This is especially unfair given that visits to communities by high-profile government figures are often made at the last minute. Residents naturally want to gather to voice their grievances to their elected representatives at such visits. Even where there is proper notice given, the modus operandi of municipalities seems to be either to accept or prohibit a gathering without recourse to a viable alternative between the two extremes, such as an alternative route or reducing the number of participants for a march. Local authorities appear to discriminate between social movements based on the content or viewpoint of the protest. Protests that challenge the status quo on land redistribution or privatization of basic services are generally prohibited. The Abahlali base Mjondolo, the Anti-Privatisation Forum and other social justice movements are unfortunate examples of certain organizations being blacklisted and whose gatherings are prohibited even before the due process provided for in the Act takes place. In the wake of the SATAWU strike several other organisations in Cape Town have been banned from marching, with the municipality citing ‘imminent violence’ as an excuse, albeit arbitrary and unjustified, to issue the banning order. Prohibitions or restrictions based on the political viewpoint of the protester are patent and unjustifiable violations of the right to assemble. Recent court rulings do however provide some hope. Earlier this year the Abahlali in Durban obtained a court order overturning a banning order and the Ivorian Community went to the Pretoria High Court, without lawyers, to get permission to picket. Organizers of a march in Soweto were recently acquitted on charges of illegal gathering after the court found the police had substantially violated the Gatherings Act. These rulings are significant in that the metro police will now no longer be able to ban marches with impunity and expect that people who march nevertheless will be convicted. The judgements are a victory for freedom of expression of poor communities in particular, for whom taking to the streets is the only form of expression available to them. In trying to address some of the causes of this unacceptable number of bannings, the FXI is holding a series of workshops to educate both government and civil society on the proper application of the Gatherings Act. Meetings with the Ministry of Safety and Security will also be held to ensure State accountability and co-operation. The right to protest is fundamental to a democratic society. While the State is mandated to maintain order and protect the public, restrictions on the right to protest creates a slippery slope of decreasing freedoms and increasing confrontation between citizen and State. Our democracy was hard won, and constant vigilance is required to keep our freedoms from sliding. Readers have left 2 comments. 1. mr
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