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Government is not accountable to its citizens in that it uses apartheid tactics deterring people from taking part in protests, writes Nkanyiso Ngqulunga.
Our right to protest is one of the most suppressed even though it is contained in the Constitution, which is offered as part of our human rights discourse as well as the functionality of our democracy for people's voices to be heard and to bring social transformation.
Scholars, like Sbu Zikode, argue that impoverished black people continue to be assailed by feelings of being pariahs subject to permanent physical exclusion from society and cities, as well as the discussions taking place.
The neo-apartheid era in South Africa has had to deal with an ambiguous dichotomy under the human rights paradigm. This dichotomy is where we give an account that the apartheid state and the democratic government have behaved in a similar manner when it comes to managing protesters. This is reflected in the way protests are handled by police currently.
We rationalise these approaches as if it is now palatable for government to act in this way.
The apartheid government introduced community policing to black-dominated areas. The reason for this was to make it easier to find those ideologically opposed to apartheid who were mobilising against the state.
Similar patterns
Today, we see a similar pattern in the policing of black people, with those in power claiming to have fought against the oppressive system.
Crime continues unhindered in communities, but when it comes to protests the police come with a mandate to use excessive force, repression and arrests. This is a political statement which, I believe, is deeply rooted to the history of this country.
Section 17 of the Constitution guarantees citizens' right to protest peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions. This right is often limited by the Gatherings Act, which sets out certain requirements.
Protests by their very nature are disruptive. It is used by those without power or a voice to communicate a message to the ruling elites. It often happens when there is a disequilibrium between ruling leaders and communities and a lack of dialogue and accountability.
In South Africa, protesters are always confronted with a militarised police, who treat protesters like criminals. This is despite there being an opportunity for the state to engage in dialogue with protesters.
This right is grossly violated in many ways by the government as well as the media that report on the issues around protests. When people demonstrate, the media is often not interested in why they are protesting but instead focuses on the manner in which the protests are carried out. Headlines scream "Violent protests erupt", which gives a negative connotation to the action and seeks to criminalise protesters before they could even commit any crime under statutory provisions.
Another obstacle with this right to protest is that the community has to follow the necessary steps to get permission to protest. Municipalities, however, make this very difficult, even though it is a community's constitutional right to protest.
Municipalities impose a particular fee and say officials need to be informed 24 hours before action takes place, which sometimes is not dealt with expeditiously.
Court interdicts as well as the misapplication of the law are among the reasons for the hostility and violence meted out on protesters.
More often than not institutions, companies and municipalities head to court to get interdicts while the lack of legal resources prevents those wanting to protest access to court. The interdict is then granted in their absence.
The failure by the courts to develop jurisprudence on interdicts has led to a situation where it is used as an intimidating mechanism to prevent demonstrations and, in some cases, to apprehend protesters.
ConCourt ruling
In 2018, the Constitutional Court confirmed a decision by the Western Cape High Court that Section 12(1)(a) of the Regulations of Gatherings Act 205 of 1993 was constitutionally invalid.
Previously, if a gathering was held without permission or formal notice, it resulted in a criminal offence and the gathering being declared a crime. The Constitutional Court said this criminalisation deterred the exercise of the right to protest and the possibility of a criminal sanction prevented, discouraged and inhibited the freedom to assemble.
The court further said "South Africa's pre-constitutional era was replete with draconian legislation that, in an attempt to preserve the apartheid political order, punished people for assembling when it did not suit the State. The High Court, in Tsoaeli, recalls how acts – such as the Riotous Assemblies Act, the Suppression of Communism Act and the Internal Security Act – were used to suppress anti-apartheid assemblies and did so by giving the state sweeping, unchecked powers to prohibit gatherings that were contrary to "public order".
The continued suppression of this right further proves that there is no accountable to citizens and indicates government's willingness to use apartheid legislation and tactics to suppress assemblies and petitioning.
- Nkanyiso Ngqulunga is a gender activist and legal scholar with an interest in feminist legal theory and decolonisation.
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