How net has tightened on protest right

SOUTH Africa’s public order policing is as ill as it ever was. This has been illustrated in recent student protests spreading across the country’s campuses.

In Joburg police shot dead a pedestrian at a protest outside the University of the Witwatersrand.

Last March, the government imposed a ban on political gatherings as part of a host of interventions aimed at managing the Covid-19 pandemic. The move was unprecedented in the country’s post-apartheid history.

Since then there has been a distressing level of uneven and inconsistent policing of gatherings. The message this has sent is that the police were going easy on some gatherings, while taking tough action on others to suppress dissent. As a scholar of the right to protest, I have not been surprised by the heavy-handed action. The state has merely been reproducing behaviour patterns entrenched over the past two decades.

Research I conducted before the lockdown pointed to anti-democratic patterns of behaviour towards protesters. This is despite a 2018 Constitutional Court judgment that affirmed people’s right to protest. I concluded from my findings that much more needed to be done at municipal level to ensure that the judgment changes how the state regulates and polices protests. South Africa’s Regulation of Gatherings Act requires a convener to give notice of their intention to hold a gathering to their local authority, in most cases their municipality.

The Constitutional Court found, in the Mlungwana and Others versus S and Another. judgment that a convener’s mere failure to give notice of an intention to hold a gathering should not be criminalised. The court argued that criminalisation was an unjustifiable limitation on freedom of assembly. It argued that less restrictive means could be used to encourage notification, which it recognised served important public purposes.

The ruling covered all gatherings. But it was particularly significant for the right to protest. This is because protests are more susceptible to government repression than ordinary gatherings. Using notification as a lens through which to view the state’s treatment of protests, I explored whether municipal practices on the ground were opening or closing spaces for protests, and what impact Mlungwana would probably have on the practices.

I drew on two datasets that provided rich detail about municipal practices over the past decade. The first was collected from 12 municipalities between 2012 and 2013 across the country by a team of researchers under my direction. The second was sourced from the South African History Archives. It had assisted a public interest law clinic to send access to information requests to all municipalities where an information officer’s contact details could be found. Many municipalities ignored their requests.

The documents they obtained covered the period 2015 onwards. I supplemented the datasets with interviews with municipalities, activists and lawyers. The research results did not paint a flattering picture of municipal practices. Municipalities used pre-emptive restrictions on gatherings, especially protests. For example, municipalities impose onerous conditions that are not required by, or even supported by, the act. Some require conveners to pay fees to hold a gathering. The act should regulate gatherings in a content-neutral manner with the narrowest prohibitions possible on harmful forms of expression.