Editorial: State breaks the law to keep order

Bonginkosi Khanyile. (Facebook)

Bonginkosi Khanyile. (Facebook)

All appears to be back to normal at our institutions of higher learning. But this is a new kind of normal – a deeply troubling kind of normal. Although active protests have dimmed and academic activities continue unhindered, managers know that they sit on a tinder box.
As security measures are ramped up, just in case, students continue to seethe in frustration.

The state has also treated the student protests as, fundamentally, a security issue. This week, the Constitutional Court ordered a student activist to be released on R250 bail. Bonginkosi Khanyile had been detained for 155 days.

He was the last remaining #FeesMustFall activist in prison.

Arrested in September at the Durban University of Technology, he was charged with eight offences, including public violence, gathering illegally and inciting violence. He was also denied bail three times – twice in the Durban magistrate’s court and once in the high court.

Prosecutors had argued that Khanyile’s bail must be denied in the interests of justice because he had violated earlier bail conditions. Chief Justice Mogoeng Mogoeng, however, pointed out that this was a flagrant disregard of the country’s legal safeguards.

“People who are accused of rape get bail. People who are accused of murder get bail. What is it about this one? We are dealing with someone’s future that should be secured, not someone who should be languishing in jail,” he said.

Khanyile has now been released. But the Constitutional Court hearing this week revealed the hypocrisy of the state’s response to student protests. The state has treated the acts of violence associated with the protests as being inherent to the protest itself. And it has abused the legal system to quell legitimate protest.

As the protests continued to surge last year, it was ministers in the security cluster who met the head of the National Prosecuting Authority to discuss how best to quell the protests.

National prosecutions director Shaun Abrahams’s explanation of the meeting was particularly memorable, and bears repeating: “It’s a Monday afternoon: I’m an hour away from a dentist appointment, buses are burning, shops are being looted, vehicles and buildings are being vandalised, people are being assaulted. It’s a state of anarchy. I receive a phone call from the minister of justice, who requests my assistance at a briefing.”

For corroboration, Minister of Justice Michael Masuta said the meeting was necessary to formulate a response to the protests. “It was deemed prudent to return the appropriate state intervention to stabilise the situation as buses were burning, shops were being looted, streets were barricaded, buildings and vehicles were being vandalised and harm was inflicted on persons.”

The approach was to put out fires raging in the streets, which is fair enough – the people have a right to protest but also a right to be protected from violent protest. Yet the state habitually responds to protests with violence, and to violent protest with greater violence. This tendency was most strongly visible in the Marikana massacre. The state also seems to fall too often into repressive ways that violate the spirit, and often the letter, of our Constitution and the rule of law. As the South African state has become more authoritarian, it has also increasingly come to believe that the law is there to be bent to its own ends.

Khanyile’s case is an example of the horrible irony of the state breaking its own laws and precepts, it would claim, to uphold the law. It should learn to see the contradiction there. Or we are all in line for a return to a repressive state in South Africa?

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