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Human rights organisations have documented a global crackdown on civil liberties since the war on terror began, as governments implement legislation related to the monitoring of citizens, powers of arrest and detention without trial. The age-old battle between repression and freedom is nothing new, write Tristen Taylor and Simon Delaney, and nowhere is this tension more apparent than in the fundamental right to protest. In South Africa, a much-hailed constitution should guarantee that right, but in reality a complex web of laws govern who can gather where and when. What is usually overlooked, they argue, is that either individuals have the right to assembly because it is an intrinsic human right or because it has been granted to them. If it is the later then its time to be afraid…

Protest is at the heart of working for change; nothing disturbs the great and powerful like people on the streets. Marches bring forth visions of another storming of the Bastille or the Rose Revolution redux. Nerves are stretched as tens of thousands move with one voice against a government, corporation or even an individual. When people gather and demonstrate, they are tapping into the awesome potential of ordinary people working together; they are no longer divided and atomised.

Hardly surprising then that governments, throughout recorded history, have sought to limit the ability of people to gather; to restrict the right to assembly; to deny the freedom to congregate. In the unrelenting war between repression and freedom - a conflict that has been going on at least since “freedom” was inscribed - kings, queens, dictators, presidents and other assorted overlords have used all means possible, legal or otherwise, to prevent the people from mobilising, and especially in public. And for good reason.

One thousand potential revolutionaries sitting in their homes, isolated and separated from potential comrades, are (and cannot be more than) bitter individuals with nothing to do besides rage in utter impotence at the TV, radio or newspaper. One thousand activists chanting as they run towards the guarded gates of political and economic power are not only a problem, they could be the beginnings of major change and the end of privilege for the few. At minimum, some bureaucrat's day will be ruined.

Across the globe, demonstrations are being banned, limited, and herded into “free speech” cages. Demonstrators are being greeted with batons, rubber bullets, arbitrary detention, water cannons, tear gas, cavalry charges, tanks, live ammunition, and man's best friend mentally and physically tortured into hate with fangs and fur.

But not in South Africa. South Africa has a constitution that protects the rights of its citizens. We are enlightened and progressive. Right?

The South African Constitution states, in the Bill of Rights (Chapter 2, Section 17), that “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The supreme law of the land, what is supposed to be an expression of the most fundamental rights a human being can have, says that you (and all your friends) can get together and protest against (or for), well, just about anything, as long as you're not carrying an AK or stomping on other human beings.

Yet, affirming (or granting, depending on your point of view) a right to assembly is not the same as enabling or allowing individuals to exercise that right. In other words, there's more to the story than a constitution. For example, Article 125 of the Constitution of the USSR states:

“In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law: a) freedom of speech; b) freedom of the press; c) freedom of assembly, including the holding of mass meetings; d) freedom of street processions and demonstrations.”

And, further to that, it addresses (also in Article 125) the practical difficulties in the exercise of these rights:

“These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.”

The irony is as bitter as regret. Under Uncle Joe's leadership, saying or writing what you wanted was apt to get you sent to Kolyma and a cold, hungry death. As for demonstrating against the Soviet Government, nine grams to the back of the head.

South Africa, to point out the obvious, is not the USSR under Stalin. However, the example of the USSR shows there can be a major and fundamental discord between a state's promises and its actions.

While dissent in South Africa isn't rewarded with ten years in a gulag, the Constitution is not matched by what is in South Africa's law on gatherings. How, where, when and why individuals gather is limited and defined, both in theory and practice, by the Regulation of Gatherings Act (RGA) No. 205 of 1993 (commenced 1996). This act defines the shape, size and location of protests. For example, if sixteen (or more) individuals want to protest at the same location they have to receive permission from the police; if they don't, the demonstration is unlawful. Under fifteen, no permission is needed, unless, of course, the protesters want to demonstrate within 100 metres of a court building, or near the Union Buildings or parliament; permission is needed to approach your elected representatives. Wear a mask (for example, dress up as a clown or Father Christmas) and you are liable to be arrested for contravening the Gatherings Act or the Prohibition of Disguises Act No. 16 of 1969.

As for demonstrating on private property (in a shopping mall, for example), that requires the owner's permission (the Trespass Act of 1959 supersedes the RGA). So, for example, demonstrating against a company that's located in mall is a hard task. Most owners will order demonstrators to leave, refusal to do so is grounds for arrest (trespassing). South Africans have the right to protest, but not on private property, not within 100 metres of a court building, not where the President lives, not if it disrupts traffic, and definitely not in a clown suit.

The right to demonstrate is, at best, a qualified right.

A close look at the responses from the Johannesburg Metropolitan Police Department (JMPD) to notices that social justice movements have filed of gatherings that they intend to hold, shows a number of violations of the RGA with regard to processes followed by the JMPD after receiving notification of a gathering. This is evidence that there is a discord between the theory (the Constitution) and the State's actions.

Some of these relate to the JMPD's abuse of Section 3 (2) of the RGA, which states, "The convenor shall not later than seven days before the date on which the gathering is to be held, give notice of the gathering to the responsible officer concerned: Provided that if it is not reasonably possible for the convenor to give such notice earlier than seven days before such date, he shall give such notice at the earliest opportunity: Provided further that if such notice is given less than 48 hours before the commencement of the gathering, the responsible officer may by notice to the convenor prohibit the gathering." Records show that this section is used to refuse any gatherings that do not comply with the seven day notice period, without due consideration being given to possible reasons for late notification (Prishani Naidoo, Establishing A Historical Record Of Violations Of The Regulation Of Gatherings Act & The Right To Freedom Of Assembly Amongst Social Movements in Johannesburg, unpublished draft, 2005).

The power to issue blanket prohibitions on demonstrations that meet the 48 hours notice leaves officials with unbridled discretion. Such discretion is regularly abused in the service of the State’s alleged interest in maintaining order, or more perversely, in silencing the political views of marginal groups. Unbridled official discretion is generally viewed as an unjustifiable impairment of the right to assemble.

The RGA thwarts many a convener who, in fact, complies with the seven-day notice period. Despite the provision of notice by many conveners ten days in advance of a demonstration, a number of provisions in the RGA have had the unintended consequence of aiding and abetting the authorities desire to prohibit protests. In short, responsible officers can comply timeously - if not substantively - with response, meeting and prohibition requirements and still not give the conveners sufficient time to have a banning order reviewed in the Magistrates Court or in High Court prior to the appointed date for the demonstration. The courts have found that the applications for review do not meet the standards for urgency set out in the rules of court. Failure to satisfy this standard means that judicial review cannot take place before the scheduled demonstration (Stuart Woolman, Constitutional Law in South Africa, in Chaskalson, M. et al, unpublished draft, 2000).

In addition, JMPD officials often do not comply with the RGA's stipulation that it should respond to a notification within 24 hours of receiving it if JMPD intends to hold a meeting about the gathering or to seek to prohibit it. Section 4 (3) states "If a convenor has been notified in terms of subsection (2) (a) or has not, within 24 hours after giving notice in terms of section 3 (2), been called to a meeting …, the gathering may take place in accordance with the contents of the notice …"

Records from both the JMPD and social justice movements show the violation of the RGA through the response to notices well after 24 hours. Often this works in conjunction with the seven-day notice period required of movements against the right of movements to seek the intervention of a magistrate to overturn the prohibition of a gathering. If the JMPD responds after the 24-hour period with the request to meet with a movement and then proceeds to prohibit a gathering, it may be impossible for a movement to apply to a magistrate within the necessary time period to get permission for a march to proceed on the intended day. However, with responses beyond this 24-hour response period, the possibility for overturning a prohibition timeously by following all legal routes is reduced.

Section 5 of the RGA states, "(1)When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convenor and the authorized member … in order to consider the prohibition of the gathering."

There are a number of suggestions in the evidence outlined below that the JMPD has been in violation of this section. Firstly, there is a lack of any significant records of "credible information on oath" preceding the calling of such meetings. In the two cases where there are such records, it would appear that the information on oath has been forthcoming after the meeting in order to prohibit the gathering. Secondly, it would seem that the meetings have become common practice in attempting to prevent gatherings from taking place rather than being spaces in which the authorities should be trying to facilitate the peaceful occurrence of the gathering in question. The prohibition letters following several of these meetings verify this as they contain the same language and represent no attempt on the part of the JMPD to assist the convenors in facilitating the gathering. This would also suggest that the meetings do not take place in "good faith" as the RGA prescribes.

The actual prohibition letters from the JMPD also constitute several violations of the RGA, through their identification of the potential adverse effects a gathering may have on traffic and their allegations of past indiscretions by people associated with the convening group as reasons for prohibition. According to Stuart Woolman, "These pro forma banning orders violate the RGA in three discrete ways. First, The RGA's 4(4)(b), actually acknowledges that gatherings will, inevitably, disrupt traffic and contemplates an agreement between the responsible officer, the convenor and the police that will ensure that 'vehicular or pedestrian traffic, especially during traffic rush hours, is least impeded'. Second, reasonable suspicion 'of lawlessness and damage to property' - the language used in these pro forma prohibitions - is not the standard set out in the RGA for the prohibition of a gathering. RGA's 5(1), demands 'credible information on oath…brought to the attention of a responsible officer.' Third, the orders fail to recognize that the time, place and manner of an assembly are often its most essential features. The disdain shown for these critical elements of an assembly constitutes a violation of RGA's 2(d)'s requirement that the responsible officer ensure that all discussions demonstrate the state's willingness to negotiate in 'good faith'." (Stuart Woolman, ibid)

There is also some evidence of the JMPD's violations of the RGA during gatherings through the fixing of the times that marches are permitted to last, intimidation by police, arbitrary arrests, and so on.

Local authorities such as the JMPD appear to discriminate between social movements based upon the content or viewpoint of the protest. Protests that challenge the status quo on land redistribution are generally prohibited. Protests mounted by members of the tripartite alliance – say COSATU – with respect to fair labour practices are generally allowed to go ahead. Prohibitions or restrictions based upon the viewpoint of the protester are patent and unjustifiable violations of the right to assemble.

Furthermore, the police are often ignorant of the RGA. Some policemen and women (especially those from stations and not specialised public order details like JMPD) are not versed in the RGA - inspectors, in the middle of protests, have been known to stare at copies of the RGA with puzzlement and fear - and will often react to demonstrations as if it were the 1980s and Riotous Assemblies hadn't been substantially repealed.

In amongst the legal talk, filing of notices, and meetings with police, what is usually overlooked is the most fundamental issue of all. Either individuals have the right to assembly because it is an intrinsic human right (they have it in virtue of being human) or individuals have a right to assembly because it has been granted to them (by the state, for example). If it is the former, then human beings can get together, without restriction, just because they are human. This is inalienable, and not for debate. Private property, it could be argued, is not an intrinsic right (just because human beings are human, they do not have the right to own land, which could equally be seen to be the property of all or even none), and thus private property cannot be used to restrict the right to assembly, as only other intrinsic rights can have a moral bearing on an intrinsic right.

However, the law sees it being the latter case. The law grants the right (and the conditions thereof) and the agents of the law permit (or not) that right. If this interpretation is valid, then be afraid, for he who giveth can also taketh away.

* Tristen Taylor is the Apartheid Debt and Reparations Campaign Coordinator at Jubilee South Africa. Simon Delaney is a lawyer at the Freedom of Expression Institute. He is a specialist in the Regulation of Gatherings Act.

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