In response, the City and other government departments have called for stronger punishment and prosecution for protesters. Their stance is that prosecution is the only way to stop the “ever-increasing violence associated with protest action”.
Calling for stronger punishment for protesters should not be encouraged because it has a chilling effect on the right of assembly. In addition, the calling for severe punishment and prosecution are at odds with our current constitutional jurisprudence on the right to protest.
The right to protest is guaranteed under section 17 of the Constitution. However, this right is not absolute and must be exercised with due regard to other rights in the Bill of Rights. The right to protest in many cases is the only tool available to poor communities with no “political or economic power”. It provides them with a passage to elevate their frustrations with government at all levels in relation to housing, service delivery and land.
Not all protests are violent, yet too often the police’s response is unreasonable, leading to the unnecessary use of excessive force. It only serves to further fuel protests. Are the methods that the public order policing and metro police employed lawful?
There’s a lack of political will to overhaul the Regulation of Gatherings Act (RGA) in order to give better effect to the right to protest.
In 2018, the Constitutional Court affirmed the importance of the right to protest when it handed down a landmark judgment in Mlungwana and Others v S and Another (the SJC10 judgment). The court declared section 12(1)(a) of the Regulation of Gatherings Act unconstitutional because that section did criminalise the convening of all gatherings without a notice, including a peaceful and unarmed assembly. The court direct that we should move away from the criminalised aspect in relation to the right to protest. The court went as far to comment that administrative fines might also be unconstitutional:
“The respondents’ suggestion that this court reads in liability for administrative fines if a convener fails to give notice is not a just and equitable remedy. As explained above, it may be that administrative fines are also unconstitutional. This would depend on the finer details of the administrative fining system, including most obviously the magnitude of fines and the consequences of failing to pay the fine. As already indicated, this is a matter best left to the Legislature.”
The right to protest remains a vital tool for participatory democracy. What this means is that citizens should remain active participants in all decision-making impacting on them. When vulnerable and poor communities decide to protest to express their views or dissatisfaction, it allows them a real opportunity to participate meaningfully in the making of decisions that affect them.”
Those acting in (elected) public positions, such as the City of Cape Town and other government departments, should engage with citizens (poor and vulnerable communities) in the decision-making process in respect of matters such as land, housing and service delivery instead of calling for severe punishment for protesters during this time of Covid-19.
The right to protest is central to our constitutional democracy, because protest is the only tool for those that have no voice in this country.