FXI disturbed by growing number of state violations of the right to protest

PRESS STATEMENT FOR IMMEDIATE RELEASE

RE: FXI disturbed by growing number of state violations of the right to protest

15/11/2005

The Freedom of Expression Institute is disturbed at the growing number of violations of the right to protest by local authorities and the police. Mounting evidence suggests that more local governments are abusing their power to authorise or disallow gatherings to stifle dissent against their own performance. If this trend continues, then freedom of expression stands to be eroded at a time when it is needed most, namely in the run up to the local government elections. Given that a number of these violations involve local governments suppressing expressions of discontent around the state of service delivery, the freeness and fairness of local government elections may be adversely affected. This is because views expressed in these protests, that are crucial for communities to evaluate the performance of
existing local governments, will be prevented from coming to light.

This concern has been amplified by yesterday’s events at the Foreman Road settlement in Clare Estate, Durban, where police reportedly crushed a peaceful and unarmed demonstration of settlement dwellers. Reportedly, the protestors were demanding land and housing in the city, and protesting against forced removals and the ongoing removal of basic services from shack settlements. Police shot randomly into the group, including using live ammunition; police charged the crowd with riot shields, backed up by riot trucks, picking up individuals at random for arrest, and confiscating money, cell phones and cameras at gunpoint.

The Foreman Road residents followed due procedure in notifying the eThekwini
Municipality of the march. The Municipality however, prohibited the march in
flagrant violation of the Constitution and the Regulation of Gatherings Act on the basis that there would be no one from the Mayor’s office to accept the Memorandum.

In a letter to the Municipality dated 10 November, the FXI argued that the
prohibition of the march did not comply with the Gatherings Act or the Constitution. The Institute pointed out the ostensible reason for prohibiting the march, namely that “.the Officials from the Mayor’s Office have advised that they have no feedback for your organisation .” was absurd, since section 5 (1) of the Gatherings Act only permits such a prohibition if there is a “.threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain
this threat.”. The FXI further pointed out that there was no evidence that the prohibition was based on information obtained under oath as required by section 5(1) of the Act. In addition, as required by the Act, there was also no attempt to try and obtain any undertaking or to impose any condition on the march to avert such speculative threats. The FXI called on the Municipality to reverse its decision and grant permission for the march. The Municipality failed to do so.

The police’s response to the gathering yesterday, that went ahead in any event, was unlawful in that the Gatherings Act requires them, even in the event of a prohibited march (as in this case), to “.Call upon the persons participating in the gathering or demonstration to disperse.”. In addition, the Act notes that “.the degree of force which may be so used shall not be greater than is necessary for dispersing the persons gathered and shall be proportionate to the circumstances of the case and the object to be attained.”. Clearly the police did not take these provisions seriously,
resulting in what amounted to a police riot against the protestors.

The FXI, as a matter of policy, condemns the eThekwini Municipality’s blatant disregard for the rights of marginalized communities to exercise their freedom of expression, in view of the fact that poor communities often have no other vehicle for expressing their discontent other than to march. If the reasons given by the eThekwini Municipality were to become the norm, then any institution targetted for protest action – including local governments themselves – could prevent the expression of dissent simply by refusing to accept the Memorandum.

The Foreman Road incident echoes concerns raised by research undertaken for the FXI, pointing to violations of the Regulation of Gatherings Act by the Johannesburg Metropolitan Police Department, which has all but ‘banned’ certain social movements from marching. In addition, numerous legal protests have been broken up by the police, including two held by the FXI itself. These incidents suggest an emerging trend spreading in South Africa where community activists critical of the current status quo are being denied their constitutional rights to freedom of expression and assembly. A related emerging trends is that police officers appear to be ignorant of the Gatherings Act or, more worryingly, abuse the Act to prevent people from
protesting and marching in public.

Local government elections will provide further opportunity for spontaneous
demonstrations against the crisis of service delivery in many municipalities. On the basis of the emerging evidence, there is good reason to fear that local authorities and the police will rather brutally suppress protest against government instead of dealing with the underlying issues, namely rising community discontent with the state of local government service delivery.

Contact:
Jane Duncan, Executive Director (082 786 3600)
Simon Delaney, FXI attorney (083 397 0057)