On 6 November, police arrested the #Brixton141, workers and students protesting at the University of Johannesburg. I support their cause. But this article is not about the merits of any cause. It is about the right to protest, a right that by necessity must be immune to the merits of the cause. More specifically, this article is about the unlawful way in which the state’s cold fist chokes spring dead. It does so systematically and unlawfully. I’ll tell you how.
We woke in October to the purple, petal-strewn streets of Johannesburg and found that along with the Jacarandas a revolution bloomed. So too blossomed pink gas rising round black pistils of police batons. And, students, when they hit you, you were flowers exploded red on the pavement. Whether this spring will live long or die young will depend on what we do to protect a right under siege.
The law that regulates the right to protest, entrenched in section 17 of the Constitution, is the Regulation of Gatherings Act. The Social Justice Coalition will be in the Cape Town high court early next year to challenge the constitutionality of one of its provisions. SECTION27, the organisation I work for, will also be in court next year to appeal the convictions in Bloemfontein of the #BopheloHouse94, Community Healthcare Workers arrested for speaking out against the Free State MEC Benny Malakoane. Our case is about the prevailing, but wrong, interpretation of the law.
The Act sets up a procedure. It requires anyone who wants to convene a “gathering” (quite arbitrarily defined as a group of 15 or more people) to notify the police. This is a good thing, it helps police protect protestors. It is a crime for a convener to fail to give notice to the police. This is the provision the Social Justice Coalition will argue is unconstitutional.
When police receive a notice, they can call for a meeting with conveners in order to “negotiate” the details of a protest; for example, which route a march might follow or what time the gathering will disperse.
But the police can’t simply say “no” to a protest. Nor can they impose terms on the protest. They can’t really do much at all unless very specific conditions exist. This is because the right to protest cannot be subject to the whims and permission of power.
But this law is not law at all in practice. In practice, a very different “legal” regime reigns, a regime more akin to apartheid’s Internal Security Act than that contemplated by the Gatherings Act. This regime derives “law”, or lawlessness, not from legislation but from institutional culture and practice—an understanding of how things are done that seeps from station walls and down through generations of police.
The case of the #BopheloHouse94 gives a good example. Free State police believe it is a crime to simply attend a gathering for which no notice was given. They’re wrong. The Act is clear about this. But clarity on paper hasn’t translated into clarity amongst police. Worryingly, the national and provincial Directors of Prosecutions believe it too. As does at least one Magistrate in the Free State. They’re wrong too.
Why does this matter? These women, all of them poor and most of them unemployed, were pulled to court nine times. They braved two full weeks of trial. And, more importantly to them, their cause suffered (another noble cause, not that it should matter).
This problem–police who misunderstand or ignore the law—is not isolated but epidemic. I’ll give some examples.
Protestors often hand over memorandums. Police often tell conveners that their protest cannot take place unless they have a letter from the relevant official stating that she agrees to accept the memorandum. If that were the law, any target of a protest could happily prevent it by a simple refusal to produce the letter. It’s not the law, but it is certainly the practice.
Police often ignore a notice, even though the law requires them to acknowledge receipt. Conveners and others are left unsure of what to do. Maybe people are then afraid to attend. Maybe the organisers move the date. Infighting and anxiety grow. Numbers dwindle. Things lose steam.
Or police impose wild conditions. It is common in several provinces for the police to impose the condition that a protest must make “no noise.” Or they reroute marches from main streets to thin alleys. They change the date of a protest from one that coincides with an important political event to some odd Saturday three weeks off.
They do, in reality, whatever they want. They get away with it.
This is all on the front side. Let’s talk about what police do to protests already under way.
Police can only order a crowd to disperse in very limited circumstances. In plenty of instances, though, the police come to a gathering with the sole intent to disperse it, irrespective of the circumstances.
The police also just arrest people. They charge them with crimes that aren’t real, as they did with the #BopheloHouse94. Or they charge them with crimes so vague the charge sheet is like grandmother’s dress, covering everything and revealing nothing. “Public Violence” is perhaps the most popular of these. This is what police did to the #Brixton141.
In the instance of the #BopheloHouse94, the state was ferocious in its prosecution. In the instance of the #Brixton141, the police pulled the protestors to jail, kept them for over 24 hours then booked and released them. The state ordered them to appear in court on the following Monday and dropped the charges. Either way, the cause suffers.
Pearls before swine
Despite this brutality, protestors are held to a much higher standard of conduct than are police.
I was at the Brixton Police station as (a small) part of a coordinated effort on behalf of social justice organisations to provide legal support to the #FeesMustFall movement.
Young people rallied outside the station in support of their jailed comrades. They were impressive (not that it should matter). They cleaned the streets and organised food and medical care for those in jail. They updated parents and housemates of the jailed. They stayed through the night, celebrated the release of their comrades then organised transport home for those who couldn’t afford it.
The commentators did not ask “why are these people brutalised, jailed and unlawfully robbed of their right to protest?” but rather “why aren’t they studying for exams?”
So it goes?
This spring, each morning as the sun drips red over Johannesburg’s purple cliffs, we know we watch fresh-torn corners of a half-healed wound. And the old ones in power also know this, so will not long let the young lions march those royal, purple carpet streets. So they go, these short springs.
We rightly cherish South Africa’s tradition of protest. But we don’t protect it. Yet it is a tradition that grows in importance—and in its threat to business as usual—as inequality and discontent grow. This is why it is under siege. And those who fight to keep the right are losing. We need more people to stand up. Sadly, they’ll have a tough time doing so. But if they don’t, this spring will be so short. So it goes. Unless we stop it. DM
John Stephens is a legal researcher at SECTION27 and writes in his personal capacity.
"Man is by nature a political animal" ~ Aristotle