CAIN: Democratic Dialogue: Politics in Public - Freedom of Assembly and the right to Protest (Report No. 8)

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Politics in Public

Freedom of Assembly and the Right to Protest

South Africa

Under the apartheid regime non-whites had no rights to public assembly in South Africa and between 1976 and 1991 there was a blanket ban on all open-air gatherings. Nevertheless demonstrations and protests by the black community were widespread and frequently ended in violent confrontation with the South African Police Force. Street disturbances, and political violence more generally, increased in frequency from the late 1980s onwards as moves to reform the political system gained momentum. In response the National Party government established a commission of inquiry to look into ways of dealing with the political violence. One sub-committee focused specifically on violence at demonstrations and in its report made wide-ranging suggestions as to the changes that were needed to the system of organising and policing such public events. Many of its recommendations were included into the new law regulating public gatherings that came into force in November 1996. Besides the new law, a number of attempts were made to control the violence by making changes to the practice of managing demonstrations; these included setting up systems of independent monitors and reducing the role and impact of the riot police. The subsequent transformation of the political system following the multiparty elections in 1994; the adoption of a new constitution and the reform of the police force all had further impact on levels of political violence. During 1997 violence at demonstrations was not an issue of major public concern.

Demonstrations and Violence

Demonstrations, marches, rallies and other forms of public gatherings such as commemorations, celebrations, funerals and protests have been a prominent feature of black political expression in South Africa for many years. Official statistics do not reveal anything like an accurate picture of the total number of such events. Anthea Jeffrey notes that statistics gathered from press reports suggest that there were only 273 marches and gatherings held in the period 1970-1980, hut she considers that this represents only a small percentage of the total. Her argument is supported by police statistics that reveal that there were nearly 11,000 gatherings in the nineteen-month period from January 1990 to July 1991 (Jeffrey 1991:33). Black rallies and demonstrations were informally permitted from 1989 onwards, and although they were still technically illegal, in most cases the legal formalities were ignored. Of the eleven thousand gatherings in 1990-91 only 1360 had been authorised, a further seventy had requested permission but had been prohibited, 851 were planned but did not request permission while the remaining 8608 were spontaneous and lacked permission. Thus the vast majority were illegal gatherings.

The police response to such events was often violent and sometimes deadly. In March 1960 69 people were killed and 180 wounded at a protest against the pass laws in Sharpeville and three weeks later another two people were killed and 26 wounded at a similar protest in Langa. During the Soweto uprising of 1976-77 over 700 people were killed, many at protests and demonstrations; while in 1984 twenty people were killed and 23 injured when violence broke out at a funeral march in Uitenhage (Jeffrey 1991:25-29). Most of the gatherings in this period were in response to localised political dynamics (Mayekiso 1996), but the violence at demonstrations also generated their own dynamic as state violence in turn became a subject of commemoration and protest. The anniversary 4 the Sharpeville killings (21 March) and Soweto Day (16 June) both became annual occasions for large numbers of public gatherings and demonstrations.

In the period from 1990 to 1991 most of the illegal gatherings were dispersed without major incident. However police recourse to live ammunition did result in death and serious injury at Sebokeng (five dead, 161 wounded) in March 1990; at Johannesburg (2 dead, 10 wounded) in November 1990; at Daveytown (12 dead, 27 wounded) in March 1991 and at Ventersdorp (3 dead and 42 wounded) in August 1991 (Jeffrey 1991:35-40). Many lesser incidents resulting in the use of reargas, rubber bullets and live ammunition to disperse demonstrators received little publicity (Cawthra 1993:131-5). The violence at demonstrations was only part of more widespread political violence involving the ANC, the Inkatha Freedom Party, various Afrikaner groups and the police which left 4783 people, including 125 police officers, dead in the same two year period (Heymann 1992:4).

The period of transition from apartheid to a democratically elected government between 1990 and 1994 was marked by an escalation of public violence. Two of the key issues were the ongoing conflict between the ANC and the Inkatha Freedom Parry over representation of the black community and local control of territory, and the continuing antagonism between the black political movements and the South African Police Force (Brogden and Shearing 1993). One major attempt to address this problem was through the National Peace Accord that was drawn up in 1991 and signed by all the main political parties (Cawthra 1993, COMSA 1993, Shaw 1997). The Accord aimed to set out a series of general principles defining the fundamental democratic rights and responsibilities that would form the basis of the new South Africa and which signatories were expected to strive to uphold. It also established Codes of Conduct for both political parties and the police relating to their attitudes and responses to public violence.

But the Peace Accord also went further by proposing a range of practical initiatives through which the violence might be countered in the period prior to the elections. The two most prominent initiatives were the formation of a Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, which became known as the Goldstone Commission after irs chairman Judge Richard J Goldstone, and provisions for a National Peace Secretariat along with a number of Regional and Local Dispute Resolution Committees.

Goldstone Commission

The Goldstone Commission was charged with the responsibility of inquiring into the phenomenon of public violence and intimidation in South Africa and to attempt to identify the causes of such violence and the people involved. It was also expected to make recommendations to the State President as to how such actions might be reduced or stopped. The Commissions remit was extremely wide ranging but one specific area that it focused on was the issue of violence at demonstrations. To address this problem the Commission constituted a multinational panel of experts from the USA, Canada, UK, Belgium and the Netherlands to review law and practice in a range of countries and to make recommendations as to the way forward for South Africa.

Many of the suggestions and recommendations by the international panel were subsequently incorporated into the new legislation covering the holding of public assemblies, the Regulations of Gatherings Act, which is reviewed below. Nevertheless it is worth considering some of the general points made in their report Towards Peaceful Protest in South Africa (Heymann 1992). This begins by setting out the basic general principle which underpins its thinking and eventual recommendations:

The right to demonstrate is as fundamental a right of democratic citizenship as the right to rake part in political campaigns. Where the purpose of demonstration is protest, the demonstration is at the core of free expression in a democracy. One of the central responsibilities of the police is to facilitate the right to demonstrate (Heymann 1992:ix).

The report proposes that these basic democratic rights can best be guaranteed by ensuring that the responsibility for peaceful public gatherings is shared as widely as possible. In their view this means that the organisers of the event, the local civil authorities and the police are jointly responsible for the events that they rake part in, this is what the report terms the safety triangle (1992:ix). The success of the safety triangle requires planning and co-ordination between the three parties and an acceptance and willingness to negotiate and compromise over any areas of dispute. However, in cases of more serious dispute the parties should have recourse to the Supreme Court to offer an independent judgement.

The authors suggest that to the maximum extent possible the organisers of the event should be responsible for controlling the participants, while the civil authorities and the police should aim to facilitate the demonstration while at the same time minimising any inconvenience to other citizens. Again they recommend that reconciliation of disputes between demonstrators and other members of society or in the vicinity of the proposed gathering should be accomplished by negotiation and embodied in a binding understanding (1992:9).

The report recommends that the organisers of all demonstrations should be required to give notification to the authorities. But the authors argue that as this does not involve seeking permission it serves to underline the fact that a fundamental right to demonstrate does exist. The report also recommends that there needs to be flexibility over the implementation of this aspect of the law and control of crowds by the police. It therefore suggests that failure to provide notification should not necessarily result in the dispersal of demonstrators, rather sanctions could be imposed on those responsible at a later dare.

They also acknowledge that while all demonstrations will cause some disruption to others there are limits to the acceptable disruption. Furthermore, balancing the rights of different interest groups is a political issue and not merely a policing issue and should be dealt with as such by the political authority rather than the police (1992:11). While urging that such matters be considered as political issues the authors of the report are also concerned that decisions over political rights might in some instances be subject to political bias. Therefore there needs to be a means of independent arbitration through the courts in the last instance.

The report acknowledges, notwithstanding the fundamental nature of the right to demonstrate, that it is legitimate to impose some constraints and restrictions on demonstrators. In particular they were concerned with the balance between exercising ones rights and causing disruption to the rights of others or creating a threat to public order. However they did not feel that it was legitimate to deny a group the right to demonstrate on the grounds that they might be attacked by political opponents. They felt that the authorities had a responsibility to protect all demonstrations and that this principle held even when the demonstrators sought to deliberately provoke opponents or even to march peacefully through a hostile area. But again in the last instance they note that this right can be limited when the police are simply unable to provide reasonable assurances of safety (1992:19). In other words the police should have the power to ban or restrict a demonstration if they believed this was the only means of preventing violent clashes.

The report also considered the role and responsibilities of the police in the peaceful facilitation of demonstrations. In particular they focused on the general need for good organisation and for the appropriate training and equipment for officers charged with crowd control. It recommended that the police needed to improve their skills in crowd management, in communication and negotiation and in the appropriate use of force. This they felt required considerably more sensitivity and restraint than had been exercised in the past.

Many of the reforms to the structure of the control of demonstrations, to the law and to the system of policing such events have been or are in the process of being implemented.

Monitoring Demonstrations

One relatively successful approach that was taken to try to reduce the tensions and persistent clashes at demonstrations and gatherings was through the use of independent monitors who attended public events to act as intermediaries either between rival groups of demonstrators or between demonstrators and the police. Monitoring groups were formed as a result of two distinct initiatives.

The Peace Accord had provided for the formation of the National Peace Secretariat and a number of Regional and Local Dispute Resolution Committees whose responsibilities included establishing rules and conditions related to marches and gatherings and liaising with police and magistrates on the same issues. Although the Dispute Resolution Committees were never as widespread as was initially envisioned, they were effective in some areas, notably the Johannesburg area, in establishing monitoring groups. Another approach was via the Network of Independent Monitors, which was set up in late 1992 and involved more than seventy organisations from across South Africa (Cawthra 1993:177).

The monitoring groups drew their active membership from a wide range of organisations within civil society, including human rights and legal support groups, peace groups and church-based groups, but they also involved activists from within both the ANC and IFP. They addressed a wide range of localised concerns including monitoring police investigations and complaints against the police, responding to and countering rumours, and threats and acts of violence. They were also involved in co-ordinating the international monitoring programme which ran from 1992 to 1994, initially to address the concerns of political violence and later to ensure that the electoral process was free and fair (COMSA 1993).

One of the key areas for monitors was in facilitating peaceful demonstrations and rallies. The monitoring groups trained volunteers who would attend public events and intercede between the police and local people in order to reduce the threat of clashes at demonstrations and act as crisis managers at a sign of violence breaking out. The monitors liased with the organisers of public gatherings and the police at both local and regional level in order to try to reach agreements over the nature of the planned events, the routes they should take and any specific local concerns that needed to be addressed.

On the day of public gatherings the monitors wore distinctive jackets or other markers. They would liaise with and to some extent co-ordinate the marshals on one side and the police commander on the other to ensure that both sides did their utmost to maintain the peace. On occasions monitors had to physically place themselves between rival political groups or between demonstrators and the police to prevent violence breaking our, but wherever possible urgent consultations sufficed. Besides crisis management, the monitors also rook responsibility for ensuring that the necessary infrastructure of support was provided: first aid posts, water points and that police positions were clearly defined and routes were agreed.

At times monitors were physically threatened but in general they were treated with some respect. While many monitors came from outside the townships they also drew on local people when possible and utilised their authority and experience to influence events. Wherever possible the monitoring groups were mixed, they included members of both ANC and INF within each volunteer group. The ANC activists would act as lead monitors in ANC areas and Inkatha monitors did likewise in their areas, but it was important that the individuals were regarded principally as monitors rather than political activists.

Although they were initially treated with some suspicion both by political activists and by the police, all sides came to see the benefits of having monitors on the ground. The political groups saw that the monitors had some influence with the police and they could achieve things on the day by working through the monitors that they would not have been able to achieve in direct negotiation with the police. The police in turn were able to keep their officers away from the front line and devolve responsibility to the monitors and the marshals to ensure the events passed peacefully.

Independent monitoring at public gatherings was successful in many instances; for example, at a number of demonstrations around the time of the funeral of murdered ANC leader Chris Hani in March 1993 (COMSA 1993). However some large demonstrations were still extremely problematic to control and in spire of the best efforts violence still occurred on occasions: in the run-up to the elections in 1994 a large Inkatha rally through Johannesburg degenerated into widespread violence as it past the ANC headquarters in the city and over fifty people were killed. In his report into the violence Judge Goldstone reiterated the need to provide an effective legal mechanism for the regulation of such events, such as those suggested in the recommendations made in the report that his commission had published the previous year.

The monitoring continued through the period of the elections when demonstrations were widespread and often tense and although some independent monitoring groups continue to function, they no longer operate on the scale of the early 1990s.

Reforming the Police

One of the key practical impacts that the system of independent monitoring had on the practical expression of the right to demonstrate was in reducing face to face confrontation between demonstrators and the police. The debate on the need for fundamental reform of the South African Police Force had been underway for some time. Much had been made of the localised systems of community policing that had been established under the apartheid regime and the possibility that these would provide models for future systems of criminal justice (Brogden and Shearing 1993; Cawthra 1993; Mayekiso 1996).

The monitoring system provided a more formalised experiment of such a new system. The fact that the police were willing to participate and withdraw from the front line on occasions indicated a degree of recognition for the need for reform. The success of the monitors demonstrated that in certain circumstances community policing could provide a viable alternative to lethal force in controlling potentially violent situation. Finally the willingness of the ANC and IFP to increase and improve the marshalling of their own supporters suggested that they were also focused on reducing violent confrontation as part of the normative political process.

Reform of the policing system has been one of the main achievements of the multi-party system. Although there are concerns as to its effectiveness (Shaw et al 1997), the development of community input into both on the ground policing practices and into structures of accountability has been a major change from the previous approach. One of the principal areas of reform has been with regard to the riot police, who were widely used in crowd control situations and often criticised for a too ready recourse to lethal force.

The former Internal Stability Division has been renamed as the Public Order Police and new organisational structures and systems of operation have begun to be implemented. All officers have undergone or will undergo a new training programme, while new crowd control tactics and techniques and methods of operational planning have been applied on the ground. Initial statistics from the 1996 Public Order Police Annual Report indicate that there has been a drop in the amount of unrest at crowd control incidents and a large decline in attacks on the police at such events. The report also indicates that while crowds were still dispersed by use of dogs, teargas, rubber bullets and water canon on a number of occasions, their use had declined over the previous two years. In contrast there had been an increase in the number of such situations that had been resolved by negotiation.

Although these reforms are at an early stage the initial indications suggest that changes are moving in the right direction (O'Rawe and Moore 1997). They also illustrate that it is possible to undertake a thorough and largely acceptable reform of an institution that had been completely identified with the previous political regime.

Legal Rights to Demonstrate

The new legislation dealing with the control of demonstrations was enacted in January 1994. However, it did not come into force until November 1996 and at the time of out research trip (September 1997) had been little used. At the same time the new South African Constitution also provided a guarantee of the right to demonstrate. Section 17 of the Bill of Rights chapter of the Constitution states simply that ‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions’. These rights are clarified and elaborated in the Regulation of Gatherings Act 1993 which is largely based on the recommendations contained in the Goldstone Commission report of 1992. The guiding principles of the act are set out in the preamble:

Whereas every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the state while doing so;

And whereas the exercise of such right shall rake place peacefully and with due regards to the rights of others.

The peaceful exercise of the right to assembly is the joint responsibility of the convenor (organiser) of the event, an authorised member of the police and a responsible officer of the local authority. The responsible officer has the responsibility for co-ordinating the implementation of the procedures and also has the power to impose conditions and ban events, if he feels it is necessary for public order.

Notification and Conditions

The convenor of a gathering must give at least seven days notice to a responsible officer of the municipal authorities of any intended gathering. Notification should provide the names and addresses of the organisers, the purpose of the gathering, the time and place of assembly, the route to be taken and the time, place and means of dispersal and any details of transportation to and from the assembly and dispersal points.

The responsible officer must consult with the police over any problems concerning the proposed gathering. If the police raise any concerns then the responsible officer must call a meeting of the organisers, the police and any other relevant groups to try to reach agreement over any changes that are proposed. If no meeting is called within 24 hours, then the convenor can assume the gathering can take place as planned.

If no agreement is reached over changes to the plans then the responsible officer can impose conditions on the gathering. His main concerns are to ensure that vehicular or pedestrian traffic is not too severely disrupted, that access is available to property and workplaces, that rival gatherings are kept at an appropriate distance and to prevent any injury to persons or damage to property. Any conditions or restrictions that are imposed should be given in writing to the convenor of the gathering and to the police. The convenor has the responsibility of ensuring that every marshal knows the terms of the conditions that are imposed and the police should ensure that every officer is similarly aware. If there is a serious threat that the gathering will cause disruption to traffic, injury to persons or damage to property which the police could not contain, then the responsible officer can prohibit the gathering.


If conditions are imposed without agreement or a gathering is prohibited, then the convenor has a right of appeal. Similarly if the responsible officer refuses a request by the police for conditions to be imposed or a gathering to be banned, then the police have the right to appeal.

In the first instance appeals should be made to an appropriate magistrate and must be lodged within 24 hours of any decision by the responsible officer. Furthermore, the convenor, the police and any other persons whose rights might be affected by the gathering can also oppose the magistrate’s decision by appealing to the Supreme Court. The police have the responsibility of upholding the final decision of the courts, whether this might be to permit, to prohibit or to impose conditions on a gathering.

Conduct at Demonstrations

The law lays down a number on standard responsibilities and constraints on the organisers that are applicable to all public gatherings. The convenor is responsible for providing adequate marshals to ensure that the gathering is peaceful at all times. The marshals and other participants should also be aware of any terms or conditions imposed on the gathering and that the agreed route is followed. Marshals are also responsible for ensuring that free access is maintained to buildings and property during the gathering. General restrictions are also made on the wearing of mask, the carrying of dangerous weapons or the wearing uniforms that resemble those worn by the security forces. There is also a prohibition on speech, singing or signs that might incite hatred and on performing acts or uttering words that might cause or encourage violence.

Police Responsibilities

The police have a responsibility to ensure that all gatherings rake place on the agreed route and under the agreed or imposed conditions, and that gatherings do not cause unnecessary disruption to traffic or the free movement of others. They also have responsibility for providing protection for any gathering, legal or otherwise, that rakes place, and this includes preventing persons from interfering with or attempting to interfere with a gathering.

If the police have reasonable grounds to believe that danger to persons or property cannot be avoided then they can call on the people participating in the gathering to disperse. If necessary they can physically disperse the demonstrators. The force used should be proportionate to the circumstances and police should not rise weapons likely to cause serious bodily injury or death. However, if there is a serious threat to life or attempt to injure people or cause damage to property, then the police are permitted to use firearms and other weapons.

Responsibilities and Penalties

If damage occurs as a result of a gathering or demonstration then depending on the circumstances, the convenors, the organisations involved or each individual participating can be held responsible and liable.

Any person who convenes an illegal gathering, fails to comply with constraints, ignores the general restraints or hinders, obstructs or resists a police officer, a responsible officer, a convenor or a marshal at a gathering can be liable to a fine of up to R20 000 (£3,000) and imprisonment for up to one year.

Successful Reforms?

The Regulation of Gatherings Act attempts to provide a comprehensive system and structure to regulate and facilitate demonstrations and marches. Much of the law is familiar from reviews of legislation in other countries, but perhaps the most interesting facet is the recognition of the inherent political nature of such public gatherings. This is acknowledged through the interlocking structure of the decision making process which links the organisers, the police and the civil authorities as mutually responsible participants in the democratic process. In so doing it demands that each party recognise their role in maintaining the balance between human rights and social responsibilities.

Laws often look fair and balanced in their drafting and it is often only through their practical implementation that the cracks in their logic and loopholes begin to appear. In recognising the political nature of the regulatory process, the law also acknowledges the potential for abuse and bias in the ability to exercise one’s rights. It is therefore probably a viral factor that there is the opportunity to appeal through the courts against any arbitrarily imposed decision on whether a gathering should take place or nor.

As with so many politically contentious issues it is possible to devise a system and structure that looks good on paper, but the key question is whether the participants in the process are willing to work with it or whether they prefer to work against it. So far the Regulation of Gatherings Act has not been widely challenged and the police have nor had to face the same degree of violent confrontation. Since the 1994 election, demonstrations and gatherings have not been particularly contentious or violent and although some gatherings, notably those organised by a radical Muslim group PAGAD (People Against Gangsterism and Drugs) have been banned under the new law, to date these prohibitions have nor been challenged. It seems likely that this situation will remain until the run-up to the next elections in 1999 when once again demonstrations will increase in number and contention. With luck by then the political organisations will have become used to operating within the new legal structure and the reforms that have been initiated with the police service will have matured sufficiently for the new practices to have become the norm.

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