We can't blame the constitution

Deliberately retrogressive measures in the higher education field are failures of government, writes Pierre de Vos

One of the surprising aspects of the ongoing student protests is that many protesting students are framing their actions with reference to the human rights guarantees contained in the constitution.

The constitution guarantees that no student may be excluded from education because of the cost. Picture: Dimpho Maja

It is unclear whether the current protests would have been possible in a state in which the basic rights contained in the constitution were not protected.

At the time of writing, all lectures at my workplace, UCT, have again been cancelled. There will be no lectures until, at the earliest, this morning. All libraries have also been closed as a precautionary measure.

It was impossible to continue with lectures because a group of students and non-student protesters blocked entrance to campus and disrupted classes. The current student protests evoke memories of student protests during the apartheid era.

Partly because of the significance of such protest during apartheid and because of brutal attempts of the apartheid state to clamp down on many types of anti-apartheid protest, the right to assemble and to protest to advance a particular cause is enshrined in the constitution.

Section 17 of the Bill of Rights states that “everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. This right provides students with important protection when they engage in protest.

It is true that some protesters overstep the mark. It is also true that sometimes the police or private security fail to respect the right of students by breaking up protests when this is not permitted and using excessive force against students.

But when this happens, many of those who criticise the protesters for overstepping the mark explicitly or implicitly invoke section 12(1) of the constitution to make their case. This section guarantees for everyone freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”.

Opponents of non-peaceful protest action imply or state categorically such non-peaceful protest action threatens the bodily integrity of others. Students on the receiving end of police brutality or the use of excessive force by private security personnel explicitly or implicitly invoke section 12(1) and complain their bodily integrity has been compromised.

It is not surprising that some students may invoke the right to protest but turn a blind eye to the stipulation that the protest must be conducted peacefully. Most of us champion those aspects of the Bill of Rights that favour us and oppose parts we believe to be to our disadvantage.

Some students complain bitterly when university administrations call private security or police on to campus or obtain interdicts to try to stop student protests from happening. They rightly invoke their section 17 rights when they do so.

They argue that court interdicts limit the rights of those interdicted students from protesting. Where an interdict prohibits a person from setting foot on campus, they complain that the person’s right to freedom of movement (guaranteed by section 21) is being limited or that his or her right to education (guaranteed by section 29) is being compromised.

In an authoritarian state, the police would have detained all the protesting students, or at the very least, all the leaders of the protest and might have tortured and even murdered many of them (as the apartheid state did). The government of such a state might also have sent in the army “to teach them a lesson”.

While the police do not always respect the rights of citizens and sometimes engage in shocking acts of brutality, it is unthinkable that our government would order the army to open fire on unarmed students. And if the police were to detain all protesting students, lawyers would immediately rush to court to have them freed.

In doing so, lawyers would invoke section 35 of the Bill of Rights which prohibits detention without trial and guarantees for everyone the right “to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released”.

It is also unthinkable (to me at least) that our government would shut down the internet to prevent students from promoting their cause on social media. Nor is it feasible for the government to shut down or block access to specific websites like Twitter and Facebook (as the Chinese government does) on the grounds that students use these platforms to mobilise fellow students. It is unthinkable that the government would close down TV and radio stations or newspapers for broadcasting news of the protests.

If some or other minister went completely stark-raving mad and tried to implement the types of censorship mentioned above, an army of lawyers would rush to court to challenge these actions.

I would guess that a sizeable number of fellow citizens would also go out on to the streets to protest if a government imposed such draconian measures.

Many of us would be outraged if the government clamped down on the freedoms enshrined in the constitution.

At the mass demonstration that would follow, many of us would invoke our constitutionally guaranteed rights and use these as a rallying cry to oppose the measures taken by the government.

Of course, it is not only the protest action itself which is partly made possible by the rights guarantees in the constitution. Many of the demands articulated by students can also be formulated in terms of the rights protected in the Bill of Rights.

Conservative opponents of the student protests who see themselves as the guardians of the constitution might not like this, but the demand that no student should be excluded from education merely because he or she cannot afford the cost, is a demand that finds echoes in section 29(1)(b) of the constitution.

This section states that everyone has the right to “further education, which the state, through reasonable measures, must make progressively available and accessible”.

Where the state cuts funding to higher education institutions (as it has done since 2000), making it more difficult for many students to gain access to higher education of a better quality, the state is engaging in “deliberately retrogressive measures”.

It would not be easy for the state to justify such retrogressive measures in the higher education field, given the fact that the auditor-general has pointed out that billions of rand have been lost by the state to maladministration and corruption over the past 15 years.

To blame the constitution for what are essentially various failures of governance is a bit like blaming an umbrella for the rain.