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Freedom’s prisoners

Among the debris of the Abahlali base­Mjondolo president’s destroyed home lie the remains of freedoms enshrined in the Bill of Rights.

Almost three months ago Sbu Zikode had to flee his shack in Durban’s Kennedy Road after armed mobs rampaged through the settlement in a frenzy of ethno-political cleansing that left two people dead.

Today Zikode, leader of one the largest social movements in the country (with more than 20 000 members), remains underground, living in a safe house with his family and forced to convene the organisation’s meetings in secret — his freedom of movement and political association crushed.

Government has ignored Abahlali base­Mjondolo’s calls for an independent commission of inquiry into the attacks, while shack dwellers continue to allege these occurred with the knowledge of both the police and the ANC, intent on disembowelling the movement.

”The country is blessed with vibrant social movements and the ANC regards us — not the other official political parties — as their true opposition, because we are closer to the pain on the ground,” said Zikode. ”We are organised, willing to defend our rights and questioning the way the government handles power.”

Researchers and activists have long asserted the ANC’s antipathy towards the country’s social movements — many of which blossomed once the effects of Gear, the neoliberal macroeconomic policy adopted by government in 1996, began to be felt by communities, which responded by mobilising against evictions and cut-offs.

Grassroots community organisations and social movements, such as the Anti-Privatisation Forum and the Landless Peoples’ Movement, which were formed in 2001, are labelled ”counter-revolutionary”, ”the third force” or ”anti-democratic” by government whenever their dissenting voices are raised.

With government clamping down on political mobilisation and deploying pliable cadres such as Lawrence Mushwana (former public protector and recently installed as head of the Human Rights Commission) to the Chapter Nine institutions, the advocacy roles of NGOs have become more profound in ensuring freedom, as have the role of the Constitutional Court and the right to public protest during the past decade.

Freedom — or the lack thereof — pervade our every day: whether chanting down Babylon, getting hitched or going out on the piss.

In her chapter ”Thabo Mbeki and Dissent” in the soon-to-be-published book, Mbeki and After (Wits University Press), former Freedom of Expression Institute (FXI) head Jane Duncan notes that ”harsher forms of policing became more apparent during Mbeki’s period in office” with an increased use of rubber bullets and live ammunition against protesters.

Drawing on case studies conducted between 2002 and September 2008, Duncan noted the right to protest being hampered by ”an abuse” of the Regulations of Gatherings Act when ”local authorities conflate the notification process [which the Act requires to be made seven days before a march] with a process of permission-seeking”.

This has allowed local municipalities to censor protest at their whim — as was the case in 2005 when Abahlali baseMjondolo were denied ”permission” to march on eThekwini mayor Obed Mlaba’s office. They marched regardless and police opened fire on the peaceful demonstration, injuring several people.

In conversation, Duncan points out that these tactics are not the sole preserve of the ANC in government. Citing Helen Zille’s clampdown on protest while mayor of Cape Town, Duncan said: ”This problem is a systematic feature of local government practice.”

Activists said they experience ­constant intimidation by police. Arrests after marches of leaders, who are charged with ”inciting public violence”, and attempts to infiltrate their movements by security apparatus are ways of clamping down on those expressing discontent.

Research shows protests usually occur as a last resort after long periods of futile engagement between communities and dysfunctional ward committees or municipalities. What then for the collective, whose democratic voices are being silenced — often brutally — by the state?

Legislation such as the Promotion of Access to Information Act (PAIA) of 2000 was aimed at freeing citizens to seek truth from power. But Duncan estimated that until 2005, more than 60% of the applications made through PAIA met ”mute refusal” by government departments. Des D’Sa of the South Durban Community Environmental Alliance has described the Act as ”cumbersome” and ”a failure”.

Whenever the group has attempted to get information about tests and pollution levels, they are ”made to fill in hundreds of forms before being told we need to speak to industry. When we approach companies like Shell and Engen, they refuse to tell us anything because these are all ‘industry secrets’,” said D’Sa.

The attacks in New York on September 11 2001 — which resulted in the erosion of American freedom with laws such as the Patriot Act — have also had repressive repercussions in South Africa.

It has meant reinforcing apartheid legislation such as the National Key Points Act, which ostensibly calls for the securing of harbours, airports and government buildings. And, this year, the Supreme Court of Appeal found that the 2005 detention and extradition of Pakistani national Khalil Rashid to Pakistan — because of a perceived terrorist threat — was illegal.

Meanwhile, the FXI has criticised the Film and Publications Amendment Act of 2009, which introduces a system of pre-publication censorship, as ”a grave intrusion of the rights to freedom of expression”.

Duncan warned it could be used to censor political pamphlets and place strictures on artistic work; media analysts are concerned it will force journalists to reveal their sources.

Not that the Film and Publications Board hasn’t already used its muscle. In 2007 it banned the award-winning film Bog of Beasts, which used graphic images to focus on child abuse and misogyny, from the Durban International Film Festival.

While there is an overwhelming sense that government appears intent on controlling what we say and what we expose ourselves to, the past decade has seen gains made by ordinary people — usually through the Constitutional Court.

The emergence of ”law-fare” has seen citizens using the courts to define constitutional imperatives, such as the equality of sexual preferences and socioeconomic rights, housing and healthcare.

In the Grootboom case (2000), the Olivia Road case (2008) and the KZN Slums Act case (2009), the Constitutional Court found, respectively, that government had to provide alternative accommodation for people in cases of evictions, needed to engage meaningfully with residents in cases of evictions and that evictions could be used only as a last resort while asserting the rights of shack dwellers to define ”meaningful engagement” with government.

But reality is sometimes very different: housing activist Irene Grootboom, a cause célèbre during her case, died in a shack in 2008; she was never provided with the accommodation that the ­Constitutional Court required of the state.

The 2005 Constitutional Court victory by the Lesbian and Gay Equality Project paved the way for the promulgation of the Same Sex Marriages Act that ensured same-sex couples were accorded similar status, entitlements and responsibilities enjoyed by heterosexual married couples.

Speaking to the Mail & Guardian on condition of anonymity, a Zulu professional who now lives in Paris said she was staggered by the shutting down of public discourse in Durban when she returned to Durban at the height of the project to install Jacob Zuma as president of the ANC in 2007: ”When I went out with friends and relatives, it was very scary that one couldn’t be critical of Zuma, or even play devil’s advocate about his ability to be president. It seemed as if, if you said anything contrary, you were the enemy,” she said.

That trend appears to have been transplanted to a national level, with the vitriol of racialised, personalised attacks or thinly veiled death threats perpetrated by the likes of ANCYL president Julius Malema whenever the president or party is criticised.

Sadly, this means that space for national discourse — which thought leaders like Sunday Times editor Mondli Makhanya contend we collectively surrendered to Mbeki during his term — is being misappropriated by verbal thugs.

This, with authoritarian messaging from government, including the shoot-to-kill commands from the security cluster, has raised further concerns.

It is apparent that, every day, South Africa’s democratically elected government is increasingly mimicking the methods and madness of the apartheid regime.
Are we freer today than we were 10 years ago?

Perhaps we’ll never be as free as we’d hoped to be, but what is becoming apparent is that there is a tendency to become prisoners of ourselves — prisoners of our own doing.

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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