South Africans still fighting for the right to protest

September 10, 2006 Edition 1

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 the 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.

Six thousand protests were officially recorded during the 2004/05
financial year, of which almost 1 000 were banned. Apart from the fact
that 15 protests are being held a 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 virtually impossible for authorities to justify banning a
protest.

A nationwide 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 who oppose the
government’s macro-economic strategy are finding themselves isolated and
targeted by local municipalities and their 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 publicly.

The 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 is particularly 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 an alternative route or reducing the number of
participants.

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 privatisation of basic services are
generally prohibited. Abahlali base Mjondolo, the Anti-Privatisation
Forum and other social justice movements are examples of organisations
being blacklisted and whose gatherings are prohibited even before the
due process provided for in the Gatherings Act takes place.

In the wake of the South African Transport and Allied Workers’ Union
strike earlier this year other organisations in Cape Town have been
banned from marching, with the municipality citing “imminent violence”
as the excuse.

Prohibitions or restrictions based on the political viewpoint of the
protesters are violations of the right to assemble.

Recent court rulings provide some hope, however. Earlier this year
Abahlali base Mjondolo 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. Organisers 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 no longer be
able to ban marches with impunity and expect that people who march
nevertheless will be convicted. The judgments are a victory for the
freedom of expression of poor communities in particular, for whom taking
to the streets is the only form of expression available.

To address some of the causes of the unacceptable number of bannings,
the FXI is holding workshops to educate both the 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.

# Simon Delaney is an attorney at the Freedom of Expression Institute
Law Clinic