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Below the radar, South Africa is limiting the right to protest

A protester smokes marijuana during a march calling for the legalisation of cannabis in Cape Town. Reuters/Mike Hutchings

This year marks the 40th anniversary of the June 16 uprisings in South Africa. The apartheid regime responded brutally to the ensuing protests, with police shooting live ammunition at protesting schoolchildren.

Given this history, to what extent does South Africa respect the right to protest today? The question should be asked with renewed urgency in the wake of the Marikana massacre and other police killings of protesters.

To date public attention has focused mainly on the part police play in repressing protests. What’s been neglected is the role of municipalities in administering gatherings in terms of the Regulation of Gatherings Act.

In terms of the Act, municipalities must consult with the police and protest conveners (organisers). If agreement is not reached about conditions for gatherings, then municipalities may impose conditions or even prohibit gatherings on very narrow grounds. This means that the Act gives municipalities tremendous power to regulate gatherings, but this power must be exercised reasonably.

Research over five years on the right to protest in 11 municipalities – the findings of which are to be published in a book later this year – showed that none adequately respected the right. Most municipal restrictions imposed on protests did not meet the test of reasonableness.

Restrictions on the right to protest

In an attempt to understand the extent of the problem a research team travelled around the country and collected notices that protest conveners were required to submit to municipalities in terms of the Act. The team also considered other documents detailing municipal conditions on gatherings.

They also interviewed municipal officials. Police data about four of these municipalities were also mined, as were media reports. Interviews and focus groups were also conducted with activists and protest conveners. This yielded rich information about the scale of the protests and their reasons, the protest actors and municipal responses to the protests.

The data suggested that most protests took place peacefully and uneventfully. But what also became apparent when comparing municipal data and media coverage was that peaceful protests were often not covered by the media as they did not involve disruption or violence.

Yet, in spite of protests remaining largely peaceful, all the municipalities surveyed instituted unreasonable restrictions on the right to protest. Most of them required conveners to seek a letter from the institution or person they were marching against, guaranteeing that they would be willing to accept the protesters’ memorandum of demands. This requirement made these protests subject to a veto by the very institution or person being targetted.

The City of Johannesburg required conveners to seek permission from a ward councillor to protest. The Rustenburg municipality, in the North West Province, insisted that traditional chiefs – sometimes the target of the protesters – give permission for protests in areas that fall under their authority.

In 2010, the Makana municipality banned a planned protest by the Unemployed Peoples’ Movement against unemployment because “a meeting with the officials must be called for a follow-up on previous matters and tabling of the current ones”.

But the Act does not stipulate how grievances should be resolved before an organisation takes to the streets. The municipality’s reason for prohibition was also not supported by the Act. Many other examples of official censorship of protests emerged during the research.

Municipalities have misapplied the Act to stifle protests since the early 2000s. For instance, the Johannesburg and eThekwini municipalities have prohibited protests by social movements like the Anti-Privatisation Forum, the Soweto Electricity Crisis Committee and Abahlali baseMjondolo on grounds that are not recognised by the Act. But this trend intensified from 2012 onwards.

In 2012, embarrassed by the scale of the protests, the Department of Co-operative Governance, under which municipalities fall, issued a circular to local governments, appealing to them to improve channels of communication.

The circular called for, among other things:

[working] with the office of the speaker [and] public participation units to ensure ongoing engagement between councillors and communities and residents.

Unintended consequences

The circular was clearly well-meaning. But it had unintended consequences.

After receiving the circular, some municipalities introduced a filtering system for protests. They required conveners to show that they had held a meeting with the municipal officials that were the targets of the protests. At the very least, they had to show that an attempt was made to bring all parties to the table.

Perversely, this requirement drove up the number of “unlawful” protests, as aggrieved protesters simply took to the streets without informing the municipality. These were generally protesters who were at loggerheads with the very municipalities they were being required to negotiate with, and who had lost faith in their ability to respond effectively to grievances.

Protesters carry sticks as they chant slogans during a protests in Johannesburg in 2015. Reuters/Siphiwe Sibeko

Flawed application of the law

These findings pointed to fundamental flaws not only in the application of the law, but in the Act itself. Municipalities claim they have the power to decide whether to allow protests or not. But the Act makes it clear that they cannot do so arbitrarily. For instance, they can only prohibit gatherings when there are imminent threats to public safety that cannot be contained through less drastic means.

A great many protests are against the performance of the very municipalities or authorities that claim the power of granting “permission” or not (the Act merely requires conveners to notify the municipality of their intention to gather, not seek permission).

This means that municipalities have intolerable conflicts of interest. They are both player and referee. The number of “illegal” protests increased when municipalities made it increasingly impossible to protest “legally”. This led to widespread and entirely inappropriate criminalisation of protests.

The police were also more likely to disperse such “illegal” protests with force as they did not have a hand in facilitating them.

But in some municipalities bureaucrats exercised relative independence from the politicians, and took administrative decisions about protests. Municipalities were more likely to be open to criticism when the responsible officer had a vested interest in the criticisms being aired. This happened, for example, if the person agreed with the protesters’ criticisms or was an opposition party supporter.

Putting repression in check

Massacres are the ultimate form of censorship. This is because public displays of state violence can stun dissenters into silence. This was as true on June 16 1976 as it was on August 16 2012 at Marikana.

But Marikana was not a particularly successful massacre for South Africa’s democracy-era rulers. It hastened political shifts away from the African National Congress and it did not dampen protest levels.

So it is hardly surprising that local governments – many of which are in the firing line of protests – are seeking ways to curtail the right to protest through administrative censorship, rather than relying on the police to use brute force. This they do by making it difficult – even impossible in some cases – for protesters to take to the streets.

This shift suggests that ruling elites recognise the fact that they lack the capacity to repress dissent openly. It is unlikely that there will be more Marikanas, in the sense of an organised plan to use state violence to quell protests. The ruling bloc simply cannot afford the political costs.

This is good news for South Africa’s democratic movements. But it does mean that public attention needs to focus on the more preemptive, less visible and ultimately less well understood forms of restrictions that limit the right to protest.

The author’s new book, “Protest Nation: The Right to Protest in South Africa”, will be published by UKZN Press later this year.

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