The following is a response to an article by Adam Habib, published by the Daily Maverick on December 5, 2016. In the piece, Habib attempts to set the record straight on why the university resorted to security tactics against the #FeesMustFall movement in 2016. By JANE DUNCAN.
Adam Habib took issue with my claim that protester violence was as a result of police and private security, which for him was an incorrect assessment as the police and private security presence was as a result of the violence. In other words, Habib disagreed with my arguments about the causal factors of protester violence. My article largely confines itself to this, and related, points.
Habib went on to argue the following, “…this is a classic case of empirical facts not being allowed to stand in the way of the analyst’s conclusion. It is striking that the conclusion is often arrived at on the basis of an analysis of police action in community struggles and a selective reading of events on university campuses”.
But when his own arguments on this issue are subjected to closer scrutiny, their logic breaks down. Far from refuting my arguments, a close reading of his piece and other statements shows that his account actually confirms them. Habib blames everyone and his or her dog for the violence on campus: everyone except himself. This is disingenuous.
According to Habib’s piece, “In January 2016, a small group of students disrupted our registration process. They were violent and threatened staff and students. When negotiations failed to resolve the issue, we brought in private security, and I made the case for this in a letter to the university community.”
Towards the end of January, the Sunday Times’s Chris Barron questioned Habib about the university’s decision to deploy private security guards, and what actions they had taken against the disruptors. Their exchange (some of which is quoted below) was highly revealing:
Barron: What steps have you taken against the perpetrators?
Habib: Immediately, we haven’t taken… What we did is we brought private security in, and we have said that if anybody crosses the line, we have got a court order and if anybody crosses that line we will arrest…
Barron: So you admit students indulged in criminal behaviour, but you have taken no steps against them.
Habib: We haven’t taken steps against them.
Barron: Shouldn’t there be consequences?
Habib: There should be consequences, and I am now ensuring that we take a harder line on those who cross the line.
Barron: But not those who have already crossed the line. Have they been allowed to register?
Barron: Although they did everything to prevent others from registering?
Habib: Some of them did register.
Barron: Isn’t this part of the problem that you’re now having to deal with? That there have been no consequences?
Habib: I think that is true. There have been cases for too long, both in universities and in the country as a whole, where we have forgiven the crossing of the line. This is why we have now given a warning that we will not allow the crossing of the line. And we are holding that line.
The Constitution dictates that when a fundamental right is limited, then the least restrictive means to limit the right must be used. In the case of the disruptions during registration, the least restrictive means would be to prevent the perpetrators from registering, punish them through the disciplinary process and lay charges against those guilty of criminal conduct, to dissuade others from following suit.
However, and on Habib’s own admission, Wits University did not at the moment in time use the least restrictive means to deal with disruptions. And this was in spite of the fact that, as Habib himself admitted, the number of students involved in the disruptions was small.
On Habib’s own admission, rather the university rushed to use the blunt instruments of private security and a court interdict. This was particularly inappropriate in view of the fact that private security guards do not have the training to police protests appropriately: a problem the sector’s industry regulatory body admitted to months later.
According to a recent report by the United Nations (UN) Special Rapporteur on Freedom of Assembly, Maina Kiani, and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, “….[civilian private security services] should not perform policing-type functions in relation to assemblies. However, where this occurs, such services must respect and protect human rights and should comply with the highest voluntary standards of conduct”.
The report, which provides very useful guidelines for managing assemblies, was presented to the UN Human Rights Council earlier this year. It includes the inputs of over 100 experts and over 50 member states. When the principles it enumerates on the proper management of assemblies are considered, relative to how protests have been managed on university campuses, a litany of human rights violations become apparent.
Interdicts always carry with them the risk of overbreadth: that is why as a general rule, they are not suitable for general crowd management. It could be argued that the interdict that was sought and granted to Wits University was targeted at specific individuals and unnamed individuals who engaged in unlawful conduct.
But in its substance, the Wits interdict went beyond unlawful activity and restrained respondents from disrupting in any way the normal activities of the applicant, including registration, classes, lectures, tutorials and the like (not a closed list, it should be noted).
Now as I have pointed out before, all protests are disruptive to a certain extent. In fact they should disrupt the “normal” functioning of our society, because our society is, by definition, abnormal for too many people. This disruption must be tolerated to protect the broader rights to assembly and expression. What isn’t legally protected though, is serious disruption.
Usefully, in a recent judgment striking down an interim interdict obtained by the University Currently Known as Rhodes (UCKAR), the judge developed some thinking on what might qualify as serious disruption.
He stated that when a lecture theatre was invaded by students who wanted to discuss rape, on threat of preventing the lecture from proceeding at all if it didn’t, that did not qualify as constitutionally protected behaviour. On the other hand, if the protesters had conveyed their message in a peaceful and non-coercive manner, leaving the students to decide if they should be heard, then that conduct would most likely have been protected.
But the judge also noted that the interdict should be restricted to activities that prevented teaching and learning from taken place and the unreasonable obstruction of access to campus. Even UCKAR itself acknowledged the need for these qualifications during the course of the case. Such narrowly tailored language is not evident in the Wits interdict.
In striking down the UCKAR interdict as being overbroad, the judge also criticised the tendency on the part of universities to seek interdicts against unnamed people, against which no cause of action had been established.
The problem with such interdicts – including Wits’s – is that innocent people who are alleged subsequently to have violated the interdict, have to prove their innocence, which reverses the onus of proof. Also, interdicts can only be granted on the basis of past conduct, not pre-emptively on the basis of future conduct. The judge noted that restricting the interdict only to those who committed unlawful acts did not cure these fundamental problems.
Overbroad interdicts invite overpolicing, but they are also extremely difficult to challenge, which is why most have simply been confirmed on their return date without proper argument, and which is why the UCKAR case is so important.
So, when faced with a choice between using a more targeted approach or a blanket approach to the threats to registration, Wits University chose the blanket approach, which was enforced by ill-prepared security guards. This was a recipe for disaster as it was bound to escalate the situation.
And disaster did, in fact, befall the university later on in the year as it struggled to keep campus open, while an increasingly radicalised protest movement tried to shut it down. The police became much more involved at that stage. It should also be noted that the police came onto campus even in the earlier, more peaceful phase of the protests in 2015.
In case anyone thinks that an overbroad approach to the protests was confined to the beginning of the academic year, then they should consider what the Socio-Economic Rights Institute (SERI) had to say about the October protests from their own first-hand experience. According SERI’s Stuart Wilson and Nomzamo Zondo:
“Police involvement at Wits has been justified by reference to the rhetoric of violence allegedly adopted by some in the student movement in response to the state’s announcement of a fee increase. Leaving aside some of the more bizarre reactions to this — one Wits professor compares the student movement to Boko Haram — it would be wrong to suggest that university management should not have been concerned about this rhetoric.
“But the response of Wits has been to forswear the approach it has taken in the past: identify those reasonably suspected of breaking the law and pursue them through the legal process. It has chosen instead to unleash the arbitrary reality of police control of public spaces.”
Most likely, SERI falls into that category of lawyers that Habib felt were obstructing the university. Parallels between his statements on lawyers and statements made by the City of Johannesburg’s Mayor Herman Mashaba are impossible to ignore.
Now, clearly, it would be silly to argue that every case of protester violence – and there have been many – is a direct response to police violence, in some kind of Pavlovian way. That is not my argument. Chains of cause and effect in protests are often not that straightforward, and activists almost always have agency in how they respond to particular situations, even violent ones.
My argument is that overbroad approaches to regulating protests escalate rather than reduce conflicts and prompt shifts in tactics from reactive forms of violence to more organised, proactive forms of violence. Such approaches also destroy trust between official actors and protesters. They also divide and weaken movements, propelling them to use tactics that do not rely on mass support. Also, they create fertile ground for the ascendance of demagogic leaders.
The duplicity that Habib claims he has observed in the student leadership occurs more readily when trust breaks down to the point where meaningful dialogue becomes difficult. On the other hand, more facilitative, democratic approaches towards protests allow movements to grow and develop democratic responses to regressive elements in their own midst.
In this regard it is self-defeating for the university to obstruct students from meeting at their democratic meeting space, as this prevents students from electing and mandating leaders properly, and holding them to account for their actions, including violent actions when they occur.
Resorting to violence is self-defeating for the movement, as it shifts the struggle onto a terrain that is dominated overwhelmingly by the state and its coercive capacities. Many in the movement realise this; but they cannot talk their fellow comrades out of hot-headed actions if they cannot meet to do so.
While access to meeting spaces may not be a sufficient condition for contentious issues in the movement to be dealt with, it is most certainly a necessary condition. Duplicity is more likely to arise when proper mandates cannot be given. Habib cannot create a problem and then complain about it.
It has been shown the world over that over-regulation of protests amplifies negative tendencies in movements, which, contrary to what Habib argues, makes the social movement theory on these questions not only relevant, but eerily predictive.
Habib accused me and other “left-leaning academics” of an overly ideological approach to the protests. But his own approach oozes with ideology. Known as securitisation, this ideology constructs social problems as security threats, thereby justifying threats of force or the use of force to address these problems.
This is how securitisation works. Take a real problem that could be addressed using more targeted means and use it to justify blanket, widespread clampdowns on democratic rights and freedoms.
As a result, violence often increases rather than subsides, which in turn paves the way for the state to intervene, and to use force rather than negotiation to address protester demands. In extreme cases, protesters become recast as threats to national security. After all, to a hammer, everything looks like a nail.
At issue here is causality: what caused what? Habib fails to acknowledge key causal factors that gave rise to the violence, and his role in creating them. Everyone is to blame but him, which is a depressing but stark example of passing the buck.
Furthermore, explaining violence is not the same as condoning it. As a political scientist, Habib should know that in order for analysis to play a diagonistic role, it needs to move below the surface manifestations of a problem, and identify the deeper processes at work. Disruption is also not the same thing as violence, although disruption may involve violence.
Contrary to what Habib argues, the lessons of community protests and their regulation are absolutely apposite to student protests; as SERI has pointed out, long-established police habits in overpolicing protests are now spilling over onto campuses.
It is also apparent from many community protests that the aim of police and intelligence interventions is often not to identify and punish the perpetrators of violence, but to crush the protests for political reasons. Anyone who thinks otherwise doesn’t know what’s going in their own country.
It remains to be seen whether another trend evident in community protest will also manifest itself in relation to the recent wave of so-called “intelligence-led” student arrests. Community leaders are often arrested, not because there is a clear case of criminality against them, but because they are politically inconvenient.
Charges are then subsequently dropped against these leaders for lack of evidence. At the same time, the true perpetrators of criminality and violence remain unidentified and at large. No one should be surprised if this happens with the student arrests.
In his long litany of complaints against everybody except himself, Habib also raised grievances about media coverage of the protests, especially the general tendency to cover spectacle at the expense of context and process. Largely, I agree with this point.
But Habib also made more specific claims that are deeply concerning. He poured scorn on broadcasting houses that used images of Wits University while reporting on protests elsewhere, and they became so fed up that they threatened legal action against some of these. Now, broadcasting houses that did so were clearly in the wrong, but threatening legal action is not the way to deal with the problem.
Habib reserved particular contempt for The Daily Vox, which he accused of blatant bias towards the protests. If their coverage was so egregious, why didn’t the university lodge complaints with the Press Council of South Africa, which could adjudicate complaints even if they are not a member, providing the organisations accepts their jurisdiction?
In fact, both the Press Council and the Broadcasting Complaints Commission of South Africa confirmed that they had not received complaints from Wits University. I checked.
To fulminate about poor media coverage and threaten legal action, while not making use of the existing complaints mechanisms, makes Habib look like a schoolyard bully. Sadly, his response is also consistent with a securitised approach: if there is a choice between less restrictive means to address a problem and a more restrictive means, then the more restrictive means is chosen.
With regards to the media, it would appear that the real issue at hand is that universities have come to realise that they don’t control the narrative any more. While much of the media coverage has been problematic, journalists themselves have become targets of private security violence, which has made them look much more critically at university conduct. This has made official tactics of smearing the whole movement with the taint of criminality, because of the actions of a few, less effective.
Furthermore, Habib’s call for a condemnation of the violence is one-sided and dangerously so at that. It focuses on condemning the violence of the protesters, while having nothing to say about the violence of the police and his own security guards (other than the terribly weak comment that these matters are being investigated by the Independent Police Investigations Directorate).
When the police shot former SRC president Shaeera Kalla in the back, the University’s Council described the incident as “tragic”.
Tragic? Really? How lame. Tragic is how the government described the Marikana massacre. What Habib and the university should have done is condemn the violence, and all those other incidents of violence where innocent students and even a priest were targeted. These double standards contribute to a hardening of attitudes, which the university can ill afford given the 8% fee increase it has just announced.
In fact, it could be argued that it is necessary to condemn state violence even more loudly than protester violence as the two are not equivalent. This is because the state claims an overwhelming monopoly on the means of violence, and on balance, using this violence inappropriately is far more dangerous to society than protester violence.
Habib himself admits that the students achieved more in two weeks than the vice chancellors achieved in years. This is yet another clear example of a parallel between student protests and community protests: state non-responsiveness radicalises protest action. Another lesson from both contexts is that unfortunately, power-holders often do not take peaceful and non-disruptive protests seriously, which escalates protests as well.
Likening the situation on our campuses and the adequacy or inadequacy of the responses of what he calls “left-academics” to that of the 1920s under Nazism is just plain silly. But it is also dangerously silly, as it invites the involvement of more securocratically-minded elements of the state and contributes to an already existing moral panic about the protests.
Habib’s overstatements may well come back to bite him in the future, as they could be used to limit academic freedom on national security grounds. As things stand, the spies and the police are all over our campuses, and hardly anyone is talking about the longer-term democratic implications of that.
This moral panic creates public acquiescence for the interventions of agencies like the State Security Agency (SSA), whose Minister claimed recently that they had a list of academics promoting Afropessimism through their teaching, thereby fomenting the violence. This is in spite of the fact that – given the nature of academic speech – it will be practically impossible for it to incite people to imminent violence.
The SSA under current Minister David Mahlobo has made it clear that it is not exactly an impartial actor in South African politics. Habib, as chairperson of Universities South Africa and therefore as the most authoritative voice in academia, has played right into their hands. He has given them an extremely generous gift for the festive season – the autonomy of the university system – on a plate. DM
Jane Duncan is a professor in the Department of Journalism, Film and Television, University of Johannesburg. Her most recent book Protest Nation: the Right to Protest in South Africa, has just been released by UKZN Press.
Photo of FeesMustFall protest by Greg Nicolson.
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