The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
Regardless of what any of us might think about the wisdom of the decision of the DA to march to the headquarters of the ANC (I thought it was a very bad idea), it did raise a vital issue for our democracy: the importance of political tolerance to ensure free and fair elections and the role political leaders are duty-bound to play in fostering and promoting such tolerance among their supporters.
It is not always easy to remain respectful of the constitutional rights of others. Anger, fear, humiliation, insecurity and a sense of powerlessness can make you act in ways that may curtail the rights of others or may break the law. Arrogance and a basic lack of respect for democracy can also make you believe that your rights are all-important, potentially leading to the undermining of others’ democratic rights and freedoms.
I suspect it is especially difficult to respect the rights of others when they have more political, economic or social power than yourself and you feel invisible and unable to play a meaningful part in formal political and legal processes.
When you feel your voice will not be heard because you are poor, because you are black or a woman or gay or lesbian, because you are not able to convey your grievances in silky English, or because you live in a rural area, respect for the democratic rights of others can seem like a luxury you cannot afford.
For a constitutional law academic like myself, it is not easy to grapple with the fact that a (real or perceived) lack of political, economic and social power can make someone feel that rights are illusory or that rights only serve the interests of the rich, the powerful and the well-connected. How does one insist on the fundamental importance that everyone in society must respect the rights of others, while recognising the potential misuse of those rights by the politically, economically and socially powerful to undermine the interest of the poor and the vulnerable?
My tentative answer to this conundrum – taking my cue from several Constitutional Court judgments – is that rights must be interpreted and applied contextually (taking into account our history as well as the differential power relations in society) in an attempt to ensure that rights serve all equally and fairly. It cannot mean, however, that only some have a duty to respect the rights of others, while the rest have a free pass to flout the rights of their fellow South Africans.
It’s far easier to deal with the well-documented fact that those with political power are seldom fond of the restrictions placed on the exercise of their power by a justiciable Bill of Rights. A political party in opposition tends to love a Bill of Rights – especially when it places limits on the exercise of power by their opponent in government. That same party, once in government, almost always begins to complain that the Bill of Rights makes it impossible for them to govern the country and start muttering about changing the Constitution.
Despite these complexities, one would have thought that if there was any right that all democrats in South Africa would support unreservedly – whether you are a top-dog or an underdog, whether rich or poor, whether in power or in opposition, whether a Union member or a civil society activist – would be the right to assemble and to protest. This should especially be true in South Africa where mass protests helped to bring the Apartheid government to its knees – despite the best efforts of PW Botha and FW de Klerk to curtail such protests.
The true leaders in our democracy must know this. The question is why the true leaders were so silent this week.
The right to assemble and take part in protests is one of the most democratic of rights. When respected by everyone in society, it is one of the rights most easily exercised – regardless of your political, economic or social status. Moreover, if you fail to respect your opponent’s right to assembly and protest, you are poisoning the political space and giving your opponents the gap to curtail your right to assemble in protest in future.
It is telling that in 1993 (in the dying days of the Apartheid regime) the De Klerk government adopted the Regulation of Gatherings Act to protect everyone’s right to assemble with other persons and to express their views on any matter freely in public and to enjoy the protection of the State while doing so. Despite being nominally still in power in 1993, the Apartheid regime had realised that the right to assemble and to protest was of fundamental importance for the future democracy and, more importantly, was fundamental to safeguard the interest of its white constituents.
The Act gives expression to the right (later guaranteed in section 17 of the Bill of Rights) of everyone to assemble, to demonstrate, to picket peacefully and unarmed. The Act is unique in that it places a heavy burden on the relevant police officer as well as the organisers or facilitators of a gathering to negotiate and to try and find ways to ensure that protests and gatherings remain peaceful.
Where permission for the gathering is not granted, this does not automatically turn the gathering into an illegal protest. Because the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that gatherings and protests will almost always be allowed.
Thus section 3(5)(c) of the Act requires the relevant police officers to try to identify organisers of protests and gatherings and then to engage with those organisers – even if no notice was given of the protest or gathering by its organisers. Furthermore, section 4(1) places a legal duty on the responsible officer to engage with organisers of a gathering or protest to try and reach agreement about how the gathering or protest would be conducted.
It is clear from section 5 of the Act that a gathering or protest may only be prohibited in extreme cases, namely when “credible information on oath is brought to the attention of a responsible officer that”, amongst other things, there is a threat that a proposed gathering will result “injury to participants in the gathering or other persons, or extensive damage to property”.
Only after receiving such information and only after meeting with the organisers would a responsible officer be able to prohibit a gathering, if he or she is convinced “on reasonable grounds” that no amendment to the conditions of the gathering would prevent the serious consequences.
It is therefore clear that when a large crowd of ANC supporters gathered outside Luthuli House to “defend” it from the DA without permission to do so, the ANC supporters were not involved in an illegal gathering. Unless formally prohibited by the responsible officer or by a court order, no gathering or march in South Africa is illegal – a welcome change from the Apartheid era when police could summarily declare a gather illegal as an excuse to attack protestors
Of course, the arguments used by the ANC supporters and spokespeople about the need to “protect” Luthuli House were obviously spurious. Given the lack of any evidence of violent intent on the part of the DA and given the fact that a court agreement had been reached which would have required the DA to end its march about 100 meters from Luthuli House, there was no threat of an “attack” on the organisations’ headquarters. But this in itself could not render the gathering by ANC supporters illegal.
Although the ANC gathering was therefore not illegal, this does not absolve ANC leaders from their legal responsibilities. In terms of the Act a heavy burden rested on the responsible police officer and, in this case, on the leadership of the ANC, to take all necessary steps to try and prevent violence from occurring and to ensure that the DA could freely exercise its right to gather and march.
The correct legal question to ask is therefore what steps ANC leaders took to ensure discipline among its members in order to protect the democratic rights of fellow South Africans?
From the legal perspective, it matters not whether the DA march was aimed at provoking ANC supporters. In a democracy, we have to respect the rights of even those who irritate us or whose beliefs or actions upset us deeply. Sometimes this is hard. In such cases, true leaders raise their hands and take all necessary measures to secure the basic amount of tolerance among their supporters which are needed for others to exercise their democratic rights.
It seems to me that it is for this reason that the intolerant behaviour by some ANC supporters must be viewed as a failure of responsible and wise leadership.
Where were the wise leaders?BACK TO TOP