The implications of political protests on human rights promotion in South Africa

By: Maria Goyayi

The right to protest, demonstrate, and picket, is a fundamental right toward accountability that forms the tenets of South Africa’s constitutional democracy. The Constitution of the Republic of South Africa in Section 17 and as regulated by Regulations of Gatherings Acts (RGA) 205 of 1993 confirms and confers the right to protest the people. Every person in the republic has a right to assembly, to demonstrate, to picket, and to present petitions. The RGA in recognizing the importance and sensitivity of this right, defines circumstances upon which the right to protest may be exercised. Among other things, the RGA in section 12(1) (a) requires the provision of adequate notice to the local municipality for a gathering of more than 15 people failure of which is a crime. However, in the Mlungwana and Others v The State and Another (known as ‘SJC10’) case criminalizing the failure to give adequate notice to municipal for a gathering of more than 15 people, the Constitutional Court ruled against section 12(1) of the RGA. The Constitutional Court ruled for an invalidity argument being the inconsistency between Section 12(1) and the Constitution. The Mlungwana case marks a landmark case whose ruling interpretation is instrumental in promoting fundamental freedoms, reinforcing and confirming the right to protest.

Protests, demonstrations, and picketing have always been catalysts for social-political change and hold historic importance in South Africa. The pre-1994 protests against the apartheid, to oppose a system that marginalized and oppressed black South Africans is evidence of the power of protest in bringing about social, political, and economic change that gave birth to democratic South Africa. Protests can and do bring change – by bringing social problems to public scrutiny which can be effective in bringing about social-political change. While apartheid South Africa held a history of repressing and criminalizing protests, the architects of democratic South Africa chose to break away from this and recognize protesting as a basic human right for all.

Protests while they are a basic right for everyone in the republic, they, however, have had mixed implications on the promotion of human rights. Numerous positive implications for human rights are noted especially in advancing other rights, eradicating injustice, and promoting accountability among public officeholders. Protests are key rights for enforcing accountability and advancements of other rights such as the right to safety and access to decent public services. Protesting is often the last resort that communities turn to after the failure of all other participatory mechanisms. It is an essential tool for political expression and a mechanism for voicing grievances by dissatisfied groups in society. Even in post-apartheid times, protests have remained valid and impactful in South Africa. Recent major protests in South Africa such as the #ServiceDeliveryProtest, the #MarikanaMassacre, the #FeesMustFall, and #RhodesMustFall are indicative of the pre-independence protests, as they are still geared towards social change and eradication of any form of injustice in the society.

Reflecting on Merafong, a city marred by sinkholes and an unresponsive local government demonstrates the infringement of human rights to the city residents. As the region is underlain by dolomite, it is prone to sinkholes with immense destruction, especially on the city infrastructure. Negligence in terms of infrastructure repairs and maintenance or relocation of residents indicates a failure of the Municipality in upholding the basic rights to safety, life, dignity, and education to its residents. This negligence of essential services such as maintenance and upgrading of vital sewer and wastewater infrastructure exacerbates the sinkhole crisis, further jeopardizing the lives and properties of residents. The blatant disregard for the well-being and dignity of the residents not only endangers lives but also erodes the public trust in its leaders. Under such a situation striking, protesting or picketing is essential to put pressure on the Municipality to act.

Equally, numerous incidences indicating infringement of the promotion of human rights are noted in South Africa. For instance, the right to say no to mining in Xolobeni, at Mbizana in the Eastern Cape, has resulted in the killing of Black Africans and the displacement of economic activities from home in fear of being killed. The more than 15-year battle centered towards the desire to restore and amplify people’s power to consent has cost activists like Sikhosiphi “Bazooka” Radebe, his life. The intersection of corruption and compromised leadership aggravates this battle. Democratic fighters’ chants of “The people shall govern” has lost sight of this resistance leaving people completely at the mercy of politicians with inconsiderate appetite and an unconcerned attitude towards the plight.

Additionally, amid the economic breakdown, poverty, and unemployment, xenophobic violence against foreign nationals is common in South Africa. Year after year, waves of xenophobic attacks under slogans such as “Put South Africa First” and “Operation Dudula” erupt as protests against foreign nationals residing in the republic. Vigilante groups regularly conduct door-to-door searches for undocumented foreign nationals, blaming them for the increased rate of crime and unemployment. Such protests depict the misuse of the right enshrined in the Constitution.

Furthermore, while protesting is a right that is protected by the Constitution, it, however, remains an individual’s right to take part in a protest. Individuals have a right to abscond any protest that they do not see fit to their cause. Numerous incidences are noted where protesters force the participation of other individuals by using intimidation and sometimes violence. As protesting is a basic right of every individual in the republic, so is the right to choose to participate. For instance, during xenophobic attacks, numerous messages of intimidation against those who do not believe in the cause, are circulated to force participation. Additionally, cases of violence against South African nationals who do not turn against foreigners have been reported. Violence and inflicting of physical injury to bystanders, looting and stealing of goods, and destruction of to property are common during protests in South Africa. For instance, the “#FreeJacobZuma” marked one of the worst looting and destruction of property nationally wide. Similarly, the #FeesMustFall and #RhodesMustFall country-wide protests were marked by the burning of University Buildings, and the desecration of figurines and statues on campuses.

Drawing the implications of Protests in promoting human rights is a stark reminder that human rights are not just lofty ideals enshrined in our Constitution; they are the tangible, everyday needs of our people. Moreover, it’s a reminder that human rights are for all; in carrying out one’s rights one has the obligation of ensuring that their actions do not infringe others’ rights, if anything their actions should aim at promoting others’ rights.

As the nation strives to build a more inclusive and equal society, the government and its stakeholders need to acknowledge and address the disparities in service delivery that perpetuate injustice and undermine the very principles of human rights. Moreover, the South African citizenry needs to be made aware that with rights there are obligations; and that rights should be exercised in a manner that does not infringe on others’ rights. Protests remain a critical platform for bringing about change, escalating grievances, and holding accountable public office holders, however, such a right should be practiced with caution to limit harming other rights. Doing so shall pave the way towards South Africa, a nation that is truly united and prosperous, where all citizens can enjoy the full spectrum of their human rights paved.

Dr. Maria Lauda Goyayi is an academician and a researcher. She writes in her personal capacity.