On the freedom to protest

7 minutes to read
Column
Ana Deumert
29/11/2018

In this column, Ana Deumert reflects on the right to protest. A recent South African court ruling argued that the requirement to give notification to the authorities can undermine this right; especially for children, youth and the poor. Yet, it is precisely the least powerful in our society for whom the right to protest is often the only avenue through which they can make themselves heard.

Making our protest voices heard

In August 2016, black students at Pretoria High – a historically white school – protested against the school’s hair policy, which victimized students who wore dreadlocks and afros. They also protested against the school’s language policy, which penalized students for speaking African languages on the school grounds. 

In this protest – which eventually led to an investigation by the Gauteng Department of Education – "the pupils were the real leaders". The students carried placards with slogans such as ‘Fists up, Fros out’ or ‘Stop dehumanizing blackness – I ♥my kinks!!!.’ One image in particular circulated on social and print media: the image of 13-year old Zuleikha Patel, fist high in the air and wearing a proud afro; an intertextual image that reminded one of a young Angela Davis. 

Fifty years ago, in 1968, it was also young people who were at the forefront of polictical protests around the world

Malaika Eyoh, another student, describes the protest and the response by the authorities:

“We decided that during the school’s annual spring fair, we as black students would meet at the netball courts to hold hands and walk to the front of the school. No shouting, no dancing, no struggle songs. A silent walk of sisters, hand in hand. Before the group could get a head start, the security guards shut the gates, forcefully pushing girls backwards and reporting the procession as a “snaakse groep” [‘a strange group’]. When the gates re-opened, attention was on us. Girls proceeded to walk to the front of the school and upon their arrival were met with a police car, extra security force and members of the governing body threatening to arrest girls as young as 14. All the while raffle tickets continued to be sold in the background.” 

The description of the actions of security guards and the presence of police is chilling in its ordinariness: anyone has the right to peaceful protest, yet responses to such protests are often heavy-handed , threatening arrest and criminalizing protesters (as argued, in detail, by Jane Duncan in The Rise of the Securocrats, 2014). Harsh responses could also be seen, between 2015 and 2016, with regard to the #RhodesMustFall and #FeesMustFall protests, and just this past week in Cape Town, when residents in the Bo-Kaap protested against the gentrification of their neighbourhood. The Marikana massacre of 2012 will never be forgotten – the day when 34 peacefully protesting miners were killed by the police. 

The importance of youth protests

Youth protests have a long history in South Africa, going back, to the beginning of the twentieth century. Schools were often the space-place where protests started, and youth protests became so frequent that several commissions of inquiry were set up in the 1940s. Protests increased in frequency once more in the 1970s, culminating in the Soweto uprising of 1976 – a memory that is etched across the nation’s psyche in the image of 12-year-old Hector Pieterson, who was killed on 16 June when the police opened fire on protesting students. 

Students protested – and continue to protest – not only in South Africa but around the world, against gun violence, climate change, racism, inequality, sexism and homophobia. Fifty years ago, in 1968, it was also young people who were at the forefront of polictical protests around the world ((Norbert Frei, 1968: Jugendrevolte und Globaler Protest, 2017; Heike Becker and David Seddon, Africa’s 1968 – Protests and Uprisings across the Continent, 2018). 

The frequency of youth protests attests to their importance in the political landscape. These protests remind us of the fact that the experiences of injustice, inequality and exclusion affect everyone, irrespective of their age. They also remind us that citizenship does not start with the right to vote – it starts with the right to protest. 

The sociolinguistics of protest

Sociolinguists have long been interested in political protests. They have studied the temporal order in which protests unfold; the rhetoric of speeches delivered; the ways in which space is occupied and transformed semiotically through signs, chants and songs. (see, for example, Louisa Martín Rojo, Occupy: The Spatial Dynamics of Discourse in Global Protest Movements, 2016). Protests are complex acts of political expression that are entangled with emotions. These emotions include anger and frustration, but also hope for a better world. 

As Gasaway Hill reminds us in The Language of Protest (2018): ‘protest is messy’ – it is a complex political act, involving not only the protesters but also the state. Even though ‘the right to protest’ is fundamental to democracy – allowing for diverse voices to be heard, grievances to be raised, and institutions to be held accountable – this right is often restricted by governments who are concerned about public order and security, worried that protests might turn uncontrollable. 

The right to protest – and its restrictions

The first restriction, which is generally accepted, is that protests should be non-violent. In the South African Constitution of 1996 this is specified as follows (Section 17): “Everyone has the right, peacefully and unarmed, to demonstrate, picket and to present petitions.” It is currently not clear whether non-violence includes disruptive protests, i.e. protests that involve actions such as barricades and occupations.

It is for the least powerful in society that the right to protest is most vital

Some legal scholars have argued that disruptive protests should be included within the definition of non-violence, but this has, to date, not been tested in South Africa (Sofura Abdool Karim and Catherine Kruyer 2017, The Constitutionality of Interdicting Non-Violent Disruptive Protest).

Another restriction, however, has been tested recently: the requirement that protesters need to notify the authories prior to the protest. Giving advance notification of protests is a requirement in many countries across the globe (Law Library of Congress 2014).

Making laws that are pro-child – and pro-poor

On 19 November 2018, the South African Constitutional Court declared Section 12 of the Regulation of Gatherings Act (1993) as unconstitutional and invalid. Section 12 made the failure to notify the authorities of a planned protest – defined as a gathering of more than fifteen people – a criminal offence. 

In evaluating the Regulation of Gatherings Act, the judges paid particular attention to the rights of minors, emphasizing that the law was far from child-friendly: “This [the requirement for notication] has the potential effect of criminalising children who are more likely to exercise their right to assemble peacefully and unarmed without giving the required notice. For children who cannot vote, this right is a vital tool for their political participation.” (Mlungwana and Others vs State and Another, 2018)

It seems to me that this is a good test when evaluating legislation: whether it is, as noted by judge Albie Sachs in 2007, ‘child-sensitive’ (cited in Nurina Ally, South African Law and the Right to Protest for Children, 2017; in this context ‘child’ refers to anyone under the age of 18). And one might add, whether it is also sensitive to conditions of poverty as well as socio-cultural marginalization.

In other words, it is for the least powerful in society that the right to protest is most vital; it is a major avenue through which they can make their voices heard, and hold governments accountable. And it should be easy, in any democracy, to make one’s voice heard and to participate in political debate; it should not be a path that it littered with red tape. 

Studying protests: why the law matters

Does the legal context – whether or not notification needs to be given – matter to sociolinguists studying protests? It matters because it shapes the way in which protests unfold in time, the materialities they produce, and the political structures they help create.

Thus, in South Africa, notice was required at least seven days in advance and had to be submitted in writing by ‘the convenor’. The very idea of ‘a convenor’ belies the collective nature of protest action and establishes, through a bureaucratic process, leadership structures (even if these are only instantiated in the moment of the application).

Moreover, the notification had to specify the place where the protest would be held and the estimated number of participants. Yet, space is an expressive resource in the context of, especially, urban protests, and restricting that resource ultimately limits the semiotic freedom of participants. 

The requirement for notification created particular temporalities. Being asked to plan several days in advance meant that there is time to design placards and, in some instances, even branded T-shirts or other paraphernalia (as was the case for the largely middle-class #ZumaMustFall protests in 2017). Hashtags for online visibility can circulate prior to the start of the protest, and journalists are likely to be on-the-scene. 

Not having to notify allows for different possibilities – protests can be planned from one day to the next and, as a result, placards might be make-shift or even absent. People can spill into various spaces as routes are not pre-negotiated. Even though all protests unfold across time and carry an element of unpredictability, abandoning the requirement for notification emphasises the emergent possibilities of protest action.

Citizenship: the right and freedom to protest

South Africa has seen an exceptionally large numbers of protests since 2004, many of which have flouted the requirement for formal notification. Estimates speak of several thousand per year, and most of these protests take place outside of suburban neighbourhoods and the central business districts of major metropolitan areas. They often start in response to a particular issue, are highly localized and involve those who live at the margins of society: the poor and the youth. Few of them are reported in the media, and fewer still obtain online hashtag-visibility. Yet, the fact that these protests occur with high frequency across the country, suggests that we might see what Peter Alexander (2010) called a ‘rebellion of the poor’, a persistent demand for socio-economic rights, for more meaningful citizenship, and indeed a grassroots critique of neoliberal policies and the legacies of colonialism. 

Let me end with reference to a song by Pussy Riot, played on top of a garage next to a prison in Moskow (2011): smert’ tyu’me, svobodu protestu, ‘death to prison, freedom to protest’ – anyone, anytime and anywhere. By affirming the freedom to protest as fundamental to democratic citizenship, the Constitutional Court put an end to attempts to restrict and criminalize this right – restrictions that, not surprisingly, were formulated in the last year of apartheid, just before the election of a democratic government in 1994. 

Like so many recent judgements of the court, this is a revolutionary judgement – as stated by political activist Zackie Achmat, one of the applicants in the case: “The right to protest has been freed from its colonial and apartheid shackles. Protests, demonstrations and sit-ins can be convened anywhere without having to give notice.”