At the 18th annual World Petroleum Conference held in Johannesburg recently, a group of 13 protesters from the Free Burma Campaign gathered to demonstrate peacefully against Total Oil’s alleged support for the Burmese military dictatorship. The protest was shut down by police officers, who pushed and dragged the protesters off the sidewalk.
If the police had read the Regulation of Gatherings Act of 1993 (commenced 1996), they would have known that the Free Burma protesters had every right to demonstrate. The police violated the gatherings Act, the Constitution and several other laws.
Almost 6 000 protests were officially recorded during the 2004/05 financial year (The Citizen, October 13, 2005). Heavy-handed tactics were used recently by the police at lawful demonstrations by the Freedom of Expression Institute (FXI) against Telkom and MTN, and there is good reason to fear that the police will brutally suppress protest against the government.
There is evidence that community activists critical of the current status quo are being 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.
Research by the FXI indicts the Johannesburg Metropolitan Police Department (JMPD) in effectively banning certain social justice movements such as the Anti-Privatisation Forum and Landless People’s Movement from demonstrating at all.
The Constitution states: ”Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” So according to the supreme law of the land, you (and all your friends) can get together and protest against (or for) just about anything, as long as you are not carrying an AK47 or beating up bystanders.
The Gatherings Act gives practical effect to this fundamental right by defining the protests. For example, if more than 15 people want to protest at the same location they have to notify the police; if they don’t, the gathering is unlawful. For less than 15 people, no permission is needed, unless the protesters want to demonstrate within 100m of a court building, or near the Union Buildings or Parliament.
Wear a mask (for example, dress up as a clown or Father Christmas) and you are liable to be arrested for contravening the Prohibition of Disguises Act as well as the gatherings Act. Demonstrating on private property, for example against a company located in a shopping mall, will invariably violate the Trespass Act.
In other words, South Africans have the right to protest, but not on private property, not near a court, not where the President lives, not if it disrupts traffic, and definitely not in a clown suit. The right to demonstrate is, at best, a qualified right.
In practice, this right is diluted even further. 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 organised at short notice on the pretence of ”maintaining order”. This is unfair, given that visits to communities by high-profile government figures are often made at the last minute.
Even where the seven-day notice period is complied with, the JMPD routinely issues the letter of prohibition a day or so before the intended gathering. This leaves little time to have such an order reviewed in court. The courts have found that such an application for review does not meet the exacting standards for urgency set out in the rules of court, effectively meaning that judicial review cannot take place before the gathering.
Moreover, the JMPD invariably fails to produce ”credible information on oath” of a threat to person or property or likely disruption of traffic, which is a prerequisite for the prohibition of a gathering. It would seem that the mandatory meetings called by the authorities have become attempts to prevent gatherings from taking place rather than being spaces to facilitate the peaceful occurrence of gatherings. The prohibition letters issued by the JMPD confirm this suspicion, as most are virtual carbon copies of each other and represent no attempt on the part of the JMPD to assist the conveners in facilitating the gathering. This would also suggest that the meetings do not take place in ”good faith”, as the Act prescribes.
Local authorities such as the JMPD appear to discriminate 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. Protests regarding unfair labour practices are generally allowed to go ahead. Restrictions based on the political viewpoint of the protester are unjustifiable violations of the right to assemble.
The right to protest is fundamental to a democratic society. Restrictions on the right to protest create 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.
What is usually overlooked is the most fundamental issue of all. Either individuals have the right to assemble because it is an intrinsic human right (they have it by virtue of being human) or individuals have a right to assemble because it has been granted to them (by the State, for example). If it is the former, then human beings can get together, without restriction, just because they are human. This is inalienable and not for debate.
The law, however, sees it being the latter case. If this interpretation is valid, then be afraid, for he who giveth can also taketh away. Ask Aung San Suu Kyi; she knows.
Simon Delaney is an attorney at the Freedom of Expression Institute