http://www.businessday.co.za/articles/Content.aspx?id=77610

Will Zuma administration open its ears to the streets?
Jane Duncan
Published: 2009/08/04 06:58:2

IN THE past few weeks, a wave of protest action has swept SA. From workers protesting about poor working conditions at 2010 Soccer World Cup stadiums, to residents protesting about poor service delivery, the scenes of protest are strongly reminiscent of the Thabo Mbeki era.

Mbeki’s administration was notorious for its unresponsiveness to the needs of poor people. He presided over repeated manipulations of the law governing public gatherings, the Regulation of Gatherings Act, to stifle rather than enable protest action. Police often used excessive force to disperse protesters.

Will these practices continue under President Jacob Zuma ’s administration? Already, there are mixed signals in this regard. While the government’s response to the crisis in the Mkhondo Municipality seems to bear out political scientist Adam Habib’s prediction that a Zuma presidency will be more open and consultative than Mbeki’s, police violence against protesters in Zeerust and other areas points to a disappointing continuity in policing styles between the new administration and the old. If Zuma fails to make a break from past policing practices, he may fuel an escalation of conflict that may quickly spiral into social instability.

On Mbeki’s watch, local authorities found many ways of misapplying the act to frustrate protest action, which is hardly surprising given that many protests took place against the performance of the very local authorities that were meant to implement the act.

The act requires organisations wishing to hold a gathering of 16 people or more to notify the local authority of their intention to do so. Yet local authorities tended to conflate the notification process with a process of permission seeking. Police have been known to stop a march if the protesters were unable to provide a permit, in spite of the fact that permits are not required in terms of the act.

According to the act, the local authority can call a consultative meeting between representatives of the local authority, the police and the convener (known as a “section four meeting”). This meeting is necessary only if the local authorities have concerns about the planned gathering. Yet local authorities have also been known to assume that section four meetings are mandatory for all gatherings, and that a gathering is not “legal” unless this meeting has taken place. Both the Landless People’s Movement and Abahlali baseMjondolo have had marches prohibited for this reason.

Gatherings of 15 people or fewer are considered demonstrations, and are unregulated by the act. But the police have attempted to prohibit demonstrations on the grounds that the organisers did not “seek permission”.

The section four meeting is also meant to take place within 24 hours of a notification having been sent to the local authority, and in a spirit of co-operation with the authorities. Yet, the authorities may be more dictatorial than consultative. Also, the meeting may not take place during the stipulated time, and has been known to be called on the eve of the march, which makes it extremely difficult for protestors to contest unreasonable conditions, or even prohibitions.

The police have also been known to impose unreasonable conditions on gatherings to dispense political favours to ruling alliance partners. Organisations have also complained about councillors attempting to influence decisions about marches, to prevent protest action against their own performance. In one such case, a councillor told the responsible officer of the Johannesburg Metropolitan Police Department not to approve a gathering even before the section four meeting had taken place: a decision manifestly in bad faith. The involvement of councillors politicises what should be purely an administrative process.

The South African Police Service, which falls under national control, has been known to be more tolerant than the Metro Police, which risks falling under the sway of particular councillors. In some cases, the Metro police prevented songs being sung and placards being carried that they considered disrespectful of the government.

During Mbeki’s term of office, gatherings were prohibited on grounds that were not recognised by the act. For instance, the GaPila community was prevented by the municipal manager of the Mogalakwena Municipality from protesting against removals by Anglo Platinum, on the basis that the grievance had not been taken to the ward committee first.

The prohibition was unlawful as there is no provision legislating a particular route for grievances. The South African Communist Party in Matatiele, the Anti-Privatisation Forum and Abahlali baseMjondolo have all won cases against illegal prohibitions, pointing to abuses of power by the local authorities concerned. Even if the authorities met the requirements of the act to provide information of an imminent threat to public safety, the information could be speculative, even tendentious: a problem experienced by the Thembelihle Crisis Committee.

In cases in which local authorities have not been notified of the intention to march, the police’s focus should be on protection of public safety, rather than forcibly breaking up a march that is peaceful but illegal. Yet, on Mbeki’s watch, there was evidence of excessive use of force against demonstrators. Also, in terms of the act, an argument that the gathering is spontaneous can be a defence. Yet the police have been known to ignore this defence, and use disproportionate force to disperse gatherings.

In short, the Zuma administration needs to review the act to address local authorities’ conflicts of interest in the regulation of gatherings, as they have become both player and referee to the detriment of aggrieved communities. In any event, the act was drafted in 1993 as a temporary measure to facilitate gatherings during the transition to democracy.

Also, the Zuma administration also needs to find a more effective way of recording gatherings. Research undertaken by Natasha Vally of the University of Johannesburg for the Freedom of Expression Institute has shown that the current database — which is known as the Incident Monitoring and Reporting System, is flawed.

In fact, its year-on-year statistics on the number of protests is probably an underestimation. The database also masks how many gatherings were declared illegal, as it groups gatherings according to whether they were “peaceful” and “unrest related” gatherings. Hence the database makes it impossible to determine how widespread protest action and its prohibition are, which means that we do not have an effective tool for measuring how stable or unstable we are as a society.

Experiences with the regulation of gatherings under Mbeki’s watch suggested that protestors were often pushed to engage in unlawful direct action, or even violence, after they arrived at the conclusion that peaceful means would not lead to their grievances being heard, and after lawful avenues for the airing of grievances were closed down. So a lack of official responsiveness radicalised protest action, and prompted a shift in tactics from legal to illegal forms of protest.

Co-operative Governance Minister Sicelo Shiceka’s recent recourse to the tired “third force” rhetoric does not help to clarify the processes of conflict escalation. In fact, his responses legitimise state non responsiveness, and even repressive policing. During the service delivery protests of 2004 and beyond, Mbeki’s use of the “third force” argument led to activists being harassed by police and the National Intelligence Agency. Shiceka’s comments may lead to more of the same.

As social movement theorist Donatella Della Porta has argued, repression has a high social cost as protest cycles become exhausted. As the underlying problems that gave rise to the protests remain unaddressed, disillusionment can set in. This downward spiral provides fertile conditions for exclusivist nationalism, and even xenophobic attacks. The Zuma administration ignores these important local and global lessons at its peril.

* Prof Duncan is the former executive director of the Freedom of Expression Institute and now works for Rhodes University.