South Africa

Rethinking Protest in a Constitutional Dispensation

By N Binedell & M Oosthuizen 5 October 2016

South Africa has been described as the “protest capital of the world”. With 188% growth in protests over the last five years, numbering 3,542 in the period 2015/2016, the label is well deserved. By Prof NICK BINEDELL and MARIUS OOSTHUIZEN.

In the past weeks, while students were hurling rocks at private security guards on our university campuses, a group of thoughtful leaders met at a conference hosted by the Mapungubwe Institute for Strategic Reflection. They focused on the theme of “Seeking the Ethical Foundations of the South African Nation” with notable participants including Dr Reuel Khoza, Justice Albie Sachs, Sipho Pityana, Trevor Manuel and Bishop Malusi Mpumlwana. In the run-up to the event, co-leader of the MISTRA Ethics Project and master of ceremonies, Dr Iraj Abedian, wrote in Daily Maverick,

“… a gradual but tangible rift has emerged between the country’s socio-economic “formal (professed)” as opposed to “informal (practised)” ethics. … the facts as well as the allegations of corruption in the society have gradually tarnished the internal and external perceptions of the country’s brand, … SA’s constitutional democracy has reached an ethical T-junction. … In the absence of an agreed ethical code of honour and practice, the poor suffer, the elite benefit materially, but their welfare remains at risk. The society’s instability persists, and the environment for investment, prosperity, and development stays fragile, vulnerable to wild swings, whilst uncertainty pervades.”

One might conclude that the politics of elitism and the economics of exclusion are now generating negative long-term consequences for all citizens in South Africa. Considering the daily parade of stories of corruption, ineffective delivery by the State, wasteful expenditure, low rates of investment by the private sector with consequent low rates of economic growth, it’s no wonder the social climate is worsening. 

Listening at the MISTRA event as esteemed and accomplished leaders reflected on the state of ethics in South Africa and lamented the lack of the ethical leadership that underpins the status quo, one wondered if their intellectual activism would have any real impact. Would protesting in the ivory towers of elitism on ideological or moral grounds translate into any improvement in the national malaise? They certainly represent the polar opposite of the violent “fallists” as the activists of the #FeesMustFall movement have come to be known.

In Exile or Underground?

During apartheid the struggle movement had to contend with an authoritarian state which “ruled by force” and opted to either take their activism abroad and out of reach of oppressive state machinery, or to conduct an underground assault of resistance, subversion and boycott. Public gatherings were punitively policed under the Internal Security Act 74 of 1982, the Riotous Assemblies Act 17 of 1956 and the Suppression of Communism Act 44 of 1950 which obliterated the right of assembly of the black majority.

This meant that the most vocal supporters of the cause often had to look for soapboxes afar off while the most militant had to hide in the shadows and strike out in the gutters of the townships where they would eventually be met with military hardware, rubber bullets and tear gas. To some, the eventual adoption of armed struggle in 1961 was inevitable since the character of the state had so altered fundamentally through laws such as the Terrorism and Sabotage Acts, that all opposition by legal or peaceful means was rendered impossible.

The effects of this dual strategy of protest at home and abroad were symbiotic – the dreadful images from the uprisings would feed the growing international narrative about the inhumane character and moral bankruptcy of the apartheid regime. On the back of this imagery, Oliver Tambo and others could lead a liberation movement and mobilise resources to complement the personal costs paid by those at home. It allowed them to activate international pressure which would ultimately upend the oppressive regime.

Is ‘Ungovernable’ a Relic?

Today South Africa has become a peculiar nation where one liberation movement leader can be charged with “treason and economic terrorism” by a colleague from the same movement who stands accused of being a “racist” by yet another respected comrade of the struggle. Furthermore, this happens in the same week that the President of the Republic himself is said in Parliament to have been found by the courts to have unduly benefited and thus amounted to rightly being called a “thief”.

Notably, these high profile spats fade in significance when compared with the scale of the nationwide student protests accompanied by violence, destruction of property and the anarchical disruption of vital public institutions of higher learning. Increasingly these engagements are marked with public displays of ideological intolerance, a form of intellectual fascism and the narrowing of the space for deliberation and debate.

The student movement mirrors the character of the road closures and looting in the capitol city of Tshwane during the local government elections and have drifted far from the notions of “collective good”, “seeking collective interest” through “internal democracy” and “collective action” which is said to have marked the African National Congress’s (ANC) historic approach and led to their adoption of “collective responsibility for collective freedom” as expressed in the 2012 Strategy and Tactics of the ANC. 

The point is that in this democratic dispensation South Africa enjoys an abundance of freedom of speech and right of assembly, and while the reaction of interest groups to this broad set of dynamics is predictably diverse, activists are often still opting in many instances to make the country and its institutions ungovernable whenever citizens’ expectations are not met. Given the history of the 1970s and ‘80s, our social systems seem to have sufficient memory to be willing to challenge the State in confrontational ways that are reminiscent of our pre-democratic era. From tyre burning to buildings burning and from marching to comments in the media, South Africans are expressing their dissatisfaction in an increasing level of frustration.

Some justify this on the basis of a central tenet that the problem of not dealing with South Africa’s issues is primarily ideological, asserting that we failed to agree at Codesa to a sufficiently progressive, ideological starting point for the full transformation of the South African political economy. Others believe that a pragmatic settlement was necessary but that somehow over the last subsequent 15 years we have lost the vision, energy and practice of good execution that would have given rise to sufficient inclusiveness, growth and stability. These and other fault-lines have led in the past five to 10 years to a new culture of resistance and protest developing. 

Whatever one’s view on the cause of our dilemma, the question is whether a paradigm of protest and activism aimed at undermining institutions is useful, or a useless and perhaps a damaging relic of an earlier period when more democratic means were not viable.

A Democratic Arsenal

In a democratically constituted society, by contrast, where the rule of law is supreme, there are many non-violent legal actions that can constitute forms of protest. These include establishing new political parties, dialogue among leaders and other issue driven networks, thoughtful work by scholars and other leaders, forms of visible protests such as marches, and so on.

The civil rights movement in the US is a case in point, where citizens employed an arsenal of means by which to seek change. These included lobbying and petitioning, parades and cultural events, picketing, demonstrations and sit-ins which occasionally also led to arrest and imprisonment. In an earlier display of creative protest, activists of the National Woman’s Party, campaigning for women’s suffrage in 1913, organised a pageant on the steps of the US treasury building reaching an estimated 20,000 people, including the attention of the New York Times. Still others have resorted to “strategic nonviolence”. Important, the boundary between peaceful protest within the rules of law and the willingness of individuals and communities to take extra legal action is a critical long-term factor for the stability and prosperity of South Africa.

Since political power is understood to be the “totality of means, influences, and pressures – including authority, rewards, and sanctions — available to achieve the objectives of the power-holder, especially those of government, the state, and those groups in opposition”, as Sharp explains, nonviolence is considered an effective approach against violent regimes not through pacifism on the basis of moral or religious beliefs, but by “seizing political power and denying it to others”. This is accomplished by occupying the moral high-ground. According to this approach, it is precisely the absence of violence in protest which ultimately disarms the powerful and cedes authority to the nonviolent.

Nonviolence mobilises the powers vested in the youth, the media, the business community, among workers, religious organisations and NGOs and uses them to call upon the moral and ethical imperatives of those who hold office, forcing them to contend with their demands for change. In the context of a democratic South Africa, this would entail using the mechanisms of conversion, accommodation, coercion and disintegration:

  • Conversion, where the powerful may be convinced to change through lobbying on the basis of rational argument.
  • Accommodation, where those in power calculate that their own interests coincide with demands made – as we are seeing in the shifting support of political power at local level.
  • Coercion, which compels submission by the powerful on the grounds that failure to do so would undermine their very existence – as seen through calls for change at the helm of the ANC.
  • Disintegration, where a new redistribution of power is used to diffuse the hegemony’s position – as is increasingly taking place between factions in the structures of the ruling party.

Far from being passive, nonviolence is then actively enacted through protest and persuasion, but often through social, economic or political nonco-operation, disruptive intervention, and by doing so in a structured and systematised manner with due consideration for the propensities and weaknesses of the opponent. If South African society is as disenchanted with the political, economic and institutional powers as seems the case, one may suggest that a more thoughtful and creative approach to protest may be needed.

The Constitution, Parliament and the Courts, the Media and the Vote

The finding of the Constitutional Court that the president of the republic failed to uphold the Constitution when he ignored the remedial action of the Public Protector’s report and that Parliament failed in their duty to hold the president accountable, is proof that our democratic institutions are sound and functional when tested to the outer limits of their designated purposes. The fact that the president eventually “paid back the money” with funds borrowed from a tribally-owned development bank which is funded by the Public Investment Corporation, the custodian of the pension funds of public servants who in turn are paid from the public purse, is unfortunately a case of borrowing from Peter to pay Paul.

Ironically, this is done while Peter himself is indebted to Paul – Paul is paying himself for his brother’s indiscretions. This is an example of how impunity can be financed when public accountability is left to the courts instead of to society at large, and left to the highest court in the land at that. Such gerrymandering between the executive and legislature to elude the claws of the judiciary is a sign of a democratic society whose rulers have been given a licence to operate outside of the public interest and is the product of an immature party-political system where voter loyalties are rooted more in identity and history than in policy and performance. It is the product of a lack of democratic engagement by citizens themselves in order to hold their leaders to account.

This is where the role of institutions like the Public Protector come into their own. It is why the media and freedom of speech are so important and must be used by brave citizens of all walks of life to express their concern for the country. Not all protests have to take the form of mass mobilisation or marches to the houses of Cosatu, Parliament and the ANC or the JSE for that matter.

More subtle and direct forms of protest are required by individuals, interest groups, communities and leaders. Democracy depends on accountability, which in turn depends on transparency and the use of coherent and rational expressions of freedom of speech by independent voices who stand for what is right. So when Mr Manyi lays a charge against Mr Pityana for criticising the president, it represents a test, not merely of the credibility of the veracity of the criticisms levelled against the president and the validity of the activist’s threat to mobilise popular sentiments against his office, but rather a test of the very fabric of our democratic order. Can the courts and media be co-opted to protect narrow and vested interests or is a citizen as powerful as a president, when surrounded by other citizens and mobilised around the public interest?

Activism and protest in a democratic dispensation requires a commitment to engagement in all the means at the disposal of the citizenry to drive collective action and create the critical mass needed to bring pressure to bear on power structures which may require reform. Such a process of nurtured reformation through agency and mobilisation necessitates more patience than the destructive and deconstructive fetish of more primal instincts such as violence. In a setting such as South Africa where the scars of injustice run deep, both physically and spacially as well as psychologically and socio-culturally, steering frustration and disillusionment towards constructive engagement requires resolve and the personal resources of courage and conviction. Surely this is the task of leaders who do not stand for their own narrow interests but consider their cause to be that of the collective interest and common good, ever illusive and hard to maintain, but the only rallying cry around which to rightly mobilise the public legitimately.

Who understood this better than Martin Luther King Jr., when he said,

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”

It is no wonder he paid with his life for his convictions, fulfilling his own prophecy that,

… human progress is neither automatic nor inevitable… every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”

It remains to be seen if the legacy of struggle and activism that delivered democracy to South Africa can now muster the strategic sophistication to adapt to the new democratic environment and treat the monoliths of the convergent system of state capture, capital and group interests with the same ethical clarity as they did the apartheid system.

It remains to be seen if a form of activism can be found that can chip away at the facades of so-called revolutionary legitimacy and sculpt the better reward of a truly democratically free and fair society upon the foundations laid in the constitution.

If we can manage to get through this difficult period where leadership is bound to change and the economy is going to continue stumbling along, we will, as democrats, have to use all means at our disposal and use them more creatively in a time in which a younger generation must assert itself.

We must engage within the framework of the law. The rule of law is the gift we will leave our children. DM

Photo: Striking platinum mineworkers dance as they leave a report back meeting on negotiations at Lonmin’s Marikana mine in South Africa’s North West Province, August 29, 2012. REUTERS/Mike Hutchings

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