The protests, and the police’s unreasonable response to the #AmINext protests, outside the World Economic Forum gathering in Cape Town this past week, have once again exposed the state’s disregard for the people’s right to protest.
The right to protest is central to our constitutional democracy. When a vulnerable community, or a vulnerable and poor community decide to protest in the streets to express their views or dissatisfaction, this is a form of participatory democracy. Protest (as a tool) allows these communities a real opportunity to participate meaningfully in the making of decisions that affect them.
And yet, in South Africa, the unreasonable, violent and egregious conduct of Public Order Policing units (POP units) towards protesters continues to be a major problem. The unreasonable, violent and brutal tactics used by POP units across the country towards protestors bear a resemblance to the apartheid police force, where use of force to quell protests was the norm.
After more than 25 years of our constitutional democracy one would have thought that the police would treat protestors with more dignity and respect, but this is not the case. Across the country every day, poor and vulnerable communities for whom protest is one of the only tools to participate in our democracy, are silenced, dissuaded from protesting or confronted with rubber bullets and stun grenades and in some instances excessive lethal force by POP units. These serious violations of protestors human rights at the hands of the police should stop.
Not all protests are violent, yet too often the police’s response is unreasonable leading to the unnecessary use of excessive force (such as rubber bullets and teargas) to disperse any and all protests indiscriminately. The police’s response can only serve to further fuel protests. The right protest is an important right within our democracy, however the right to protest is not absolute and must be exercised with due regard to other rights in the Bill of Rights.
A pointed example of the unreasonable dispersal of a peaceful protest was a peaceful protest undertaken by communities on 31 January 2019, in front of the Cape Town Civic Centre, for basic service delivery. The police fired stun grenades at about 150 protestors without giving a warning or engaging with the peaceful protestors. At this peaceful protest the POP unit did not follow any rules or protocols required of them by law.
In South Africa the POP units are responsible for policing protests. The mandate of POPs are outlined in the Constitution, the Regulation of Gatherings Act (RGA), (section 9 of RGA deals with powers of the police during a protest) and the South African Police Services’ (SAPS) National Instruction 4 of 2014 (a document specifying the mandate of the POPS unit which is not easily accessible and only available on request).
There are a myriad of procedures and rules that the police should follow before resorting to the use of force that are outlined and specified in the RGA and SAPS National Instruction 4. These legislative schemes are designed in such a way that SAPS should first attempt to negotiate a solution, if the protest action presents a real problem, with the protesters (this seldomly happens) before attempting to disperse them. Only if there is a serious safety risk and if attempts to negotiate with protesters have failed, can police resort to other measures outlined in the RGA and SAPS National Instruction 4.
The use of force by Public Order Policing should be a last resort. Before SAPS can resort to force, they must give two warnings in at least two languages, and give people a reasonable time to disperse. Only if within the time specified the persons gathered have not so dispersed or have made no preparations to disperse, may the police disperse the protesters with the use of force (excluding the use of weapons likely to cause serious bodily injury or death).
Such use of force however must be moderate and proportionate to the circumstances. These protocols must be followed whether or not protesters complied with the provisions of the RGA or not.
The right to dignity (section 10 in the Bill of rights) and the right to bodily integrity (freedom of violence – section 12 in the Bill of rights), are also important constitutionally guaranteed rights for protestors. The right to dignity means that all human beings are entitled to be treated as worthy of respect and concern. In addition, the Constitution also guarantees everyone the right to be protected against invasions of freedom and security whether by the state or by private individuals (private security companies). The right to freedom from state violence protects individuals from police use of unreasonable, unconstitutional and excessive use of force. These two important rights of protestors are often disregarded at a protest and often violated by the police.
There have been many calls to review and monitor the use of force in Public Order Policing. The Farlam Commission of Inquiry inspected Public Order Policing, after the tragic Marikana massacre in 2012. The Commission made several recommendations on how to improve public order policing. It recommended that SAPS revise the prescripts relevant to Public Order Policing, investigate where POP methods are inadequate and implement training programmes for POP units. It also recommended that a panel of experts investigate public order policing in general in the South African context and to make appropriate recommendations.
Government has an important role to play in changing the mindset of the police regarding protest. Most protests relate to poor or non-existent delivery of basic services and are directed at government. This fact might be why the government is unwilling to overhaul the RGA and to change the culture within the police because by not doing so they continue to enable the police to respond to protests in ways that shield them from being held accountable.
In a judgment on the right to protest handed down in the Constitutional Court in August 2018, the court found the following: “To take away that tool [protest] would undermine the promise in the Constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite. It would also frustrate a stanchion of our democracy: public participation.”
The South African Police Service has an obligation to respect the right to protest which means it should no longer for spurious reasons be allowed to curtail that right. But more importantly, the right to human dignity and the right to be protected from violence must equally be respected and protected by the Police, because these rights forms the building blocks of our constitutional democracy, it should be guarded at all cost.
The unreasonable and violent conduct of Police at protests and their failure to follow the prescripts of the law undermine the overall vision of our Constitution. In his inauguration speech former President Nelson Mandela committed us the following: “Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression. Together, we shall march, hand-in-hand, to a brighter future.”
Justin Jafta is a researcher at the Social Justice Coalition (SJC).