Constitutional Hill

DA vs. ANC: The importance of political tolerance

It is easy to respect the rights of others when the exercise of such rights is not irritating or provocative. It is far more difficult to respect the rights of others when the exercise of those rights challenges your political beliefs or interests. In the light of the disruption of the Democratic Alliance (DA) march on the African National Congress (ANC) headquarters at Luthuli House, it is important to re-affirm the fundamental importance of such broadmindedness and tolerance in a constitutional democracy.

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?

  • Ingrid Reinten

    what I really struggle to understand is how an organisation, who were instrumental in crafting the principles of the constitution, can in 20 short years demonstrate on a daily basis that they can’t live them out.

  • OldRedNed

    Er, did you forget to mention the bricks. You know, those house-bricks in the hands of thugs wearing ANC garb. What efforts do you think the ANC leadership took to disarm them. Or were the bricks a necessary part of the lawful ANC gathering?

  • 1Zoo1

    Welcome the real face of the ANC, the one no-one wants to believe is there.

    The DA wanted to make a point, and that is that the ANC is deeply anti-democratic. They succeeded.

    Cast your vote with care.

  • Nkosingiphile Khoza

    IT IS VITAL TO RESPECT RIGHTS OF OTHERS REGARDLESS TO WHETHER THEIR ACTIONS ARE IRRITATING OR NOT,THE ACTIONS THAT THE NATIONAL AFRICAN CONGRESS(ANC) TOOK WERE UNNECESSARY SINCE THEY HAD NO EVIDENCE THAT THE DA WHILE CONDUCTING THEIR MARCH HAD AN AIM OF ATTACKING THE LUTHULI HOUSE.HOWEVER,ACCORDING TO THE BILL OF RIGHTS EVERYONE HAS THE RIGHT TO PROTEST PEACEFULLY AND UNARMED HENCE THERE IS NO PROTEST THAT CAN BE REGARDED ILLEGAL AS LONG AS IT INVOLVES NEITHER VIOLENCE NOR ATTACK.BY DISRUPTING THE MARCH THAT THE DEMOCRATIC ALLIANCE(DA) HAD AT THE ANC HEADQUARTERS,LUTHULI HOUSE,THE ANC INFRINGED DA’S RIGHT TO PROTEST.THEIR ACTIONS DID NOT EXHIBIT ANY ELEMENT OF CONSTITUTIONAL DEMOCRACY AND THEY DID NOT DEMONSTRATE CHARACTERISTICS OF TRUE LEADERSHIP.IT IS SENSELESS AND NOT USEFUL TO HAVE A DEMOCRATIC CONSTITUTION IF WE DO NOT PUT THE RIGHTS AND RESPONSIBILITIES IT PROVIDES IN PRACTICE WITH RESPECT.

  • B Mtukushe 14212944

    In South Africa we are a few years from realizing the true meaning of the values enshrined in our constitution, it seems. The determination to hold on to power leads the ruling party to a state where the just principles of the Freedom Charter and the Constitution of South Africa are deemed dispensable, depending on the occasion.
    As much as it is clear that the ANC had a right to gather outside its headquarters (for whatever purpose), in anticipation of the DA gathering, it cannot be disputed that the spirit in which this was done is counter to the aspirations of a free society where every persons have a right to gather in groups for protest purposes.

  • U11039800

    I believe the freedom of speech and the right to protest is somewhat of a necessity in politics, when it is done with an attitude of mutual respect from and towards all the parties involved. As mentioned, it has played a vital role on our road to democracy and development in our country and I believe it will contribute to further developments in bettering South Africa, when done right. The DA’s march followed the guidelines of informing the authorities beforehand and the ANC did not. Although the ANC’s “defence” of Luthuli House was not illegal, I do believe it was not well thought through on the part of the ANC leaders. Whenever two opposing political parties come into contact, especially ones like the DA and the ANC who are very vocal about their disregard for each other, there is bound to be some friction or even possible clashes. It is therefore of my opinion that it was irresponsible of the ANC leaders to create a situation which could possibly result in violence or need for police intervening, regardless whether it was in their right to do so. Tensions are high enough between these to parties already. Furthermore I find it somewhat troubling that the ANC support their actions by pointing out that it is their right to protest, while indirectly they are infringing on the rights of the DA to do the same. This article made a good point about the importance of political tolerance and hopefully both parties will pay more attention in practicing their rights in a spirit of mutual respect rather than in confrontation.

  • Monique LJacobs

    I believe in politics there are too many personal feelings involved, even though people may not want to believe it. With elections approaching at a speeding face we begin to see parties showing their true colors when they start pointing fingers and hitting the oppositions weak spots. I also feel that the media plays a role in fanning political party competition ( in a childish manner). People want to see what their leaders can do in the future not the mistakes that they have already made.

  • u14036763

    Our constitution, in which the ANC so valiantly fought for, gives people and political parties like the DA freedom to protest for what they understand to be injustices. It seems as though some ANC members have forgotten about this or don’t seem to understand this and use the Constitution, depending on the occasion and when they see it suits them. Although the ANC did have the right to gather outside the Luthuli house they did this with the intention of harming the DA marchers or to intimidate them and therefore affecting their right to protest all of which seems hypocritical of them based on their past.

  • Nqobile Van Der Madida

    D.A is really demonstrating an act of brats on schoolfield. look i try to understand and see what D.A will offer us , if we vote for them, but i am afraid to say that we are doomed all they do is tell us what Anc is not doing, they tell us how incompetent AN is, really i bet if D.A had to be in power they would ban ANC from being a party at all. i find this party ridiculous. they are so petty and a bit childish, but whats funny is that, it is towards that only towards ANC, why is that? is that what we suppose to vote for, a party that acts like this? do they even know what the constitution looks like and what it states.

    Look i am not saying i am in favour of the ANC, however, i am saying D.A is really giving us reasons to not go vote for their party. Are they really going to take care of us as a country or now pick a fight with another country when they are in charge?

  • 10224442

    I agree with your point that the DA has become solely an opposition party and they seem to be doing very little besides pointing out what the ANC does wrong. However I also believe that they are starting to feel a little desperate. The ANC is voted into power time and again based on misguided loyalty and empty promises. While I feel the DA’s campaigning this year has been very extreme it certainly is having the desired results. The one thing I don’t understand is where your last comment comes from. What evidence have they given that would lend you to say they would “pick a fight with another country when they are in charge?”

    At the moment until a better party comes along – the DA does seam to be the best of a bad bunch. For a while I thought Agang would be it but we all saw how that ended…

  • Stefan Korterink

    I believe the constitutional right to assemble and protest should be viewed as sacred to democratic South Africans and especially the ANC. It is thanks to civil protest and a combined voice of resilience that we as South Africans can today enjoy living in a country free from racially prejudiced laws that breed economic inequality and violence.

    It is for this reason that i cannot help but notice the irony in the manner in which the ANC and its supporters reacted to the DA’s planned march on Luthuli House. I also find it alarming that the destination of the march had to be changed due to fears of violence presented by ANC supporters. If our nations opposition party is met with violence at the hands of the ruling party’s supporters (which they were), it brings to question just how proud we as South Africans can be of our world class system of “democracy”.

  • Nqobile Van Der Madida

    If now they are not in power and they main aim is to pick a fight with a ruling party does that not make one deduce that such(pick a fight with another country) happen? they might not exactly say that they will pick a fight as they are not directly stating that they are with ANC but point of the matter is they are.

    As to saying they are a better party, well little can be said to justify that because what have they done to show that? Remember they are ruling party in Cape Town, let us not forget that they trembled on people’s rights with the whole open toilet fiasco? Not all the people in Cape TOWN, the improvised, are taken care of especially in this really bad weather patterns we have been having in the last two years, this is to mention a few failures on their side.

  • 11017237

    I have to agree with the author of this article, especially in the way in which he dissects this fairly volatile subject. I agree that it is easier to respect the rights of our fellow human beings when exercising their rights does not negatively impact or bother us; it is much more difficult to feel the same way if exercising their rights cause irritation, difficulty or even embarrassment to us. This is however no reason to suddenly just suppress rights that are ingrained into our constitution. If the government suddenly decides to judge which protests or gatherings are allowed and which are not, this becomes nothing less than discrimination and that goes against everything the new democratic South Africa is built on. I do feel that the events that occurred outside of Luthuli house, while abhorrent, are slightly over exaggerated in this article. While this can be seen as an attack on democracy and ‘poisoning of the political space’ I feel that these events transpired from the lack of wisdom from the leaders in the ANC, as the writer stated, this incident could probably have been mostly avoided if the leaders of the ANC showed some responsibility in ensuring that the rights of all citizens were upheld. It would have taken a courageous individual to take those steps, but I believe that the character it would have shown to stand up and be the bold brave individual who ensures the democracy that this country is founded upon is upheld, is the character of someone worthy of leading this country forward.

  • Daniel Cheung

    A true government does not rule, a true government should serve her people equally, disregarding their skin color. I think one main reason of the subtle chaos in SA is the economy. Where are the job?!

    What I have found out is SA’s economic continues to go down the hill, with commercial policies which discriminates, giving employers a bad time dealing with the policies, which made them lose interest investing in SA.

    As a Chinese, I understand what foreigners are afraid of, and it is one of the reasons SA’s economic is failing. If the government wanted economic flow and lower unemployed rate, she should definitely make it easier for foreigners to invest in SA. Perhaps, lower the taxes and policies to encourage foreign investments.

    I think it would HELP A LOT!