Political leaders need to draw a metaphorical line in the sand to prevent mob rule, says George Devenish.
The media has reported extensively on the chaotic and unruly conduct of the EFF and its supporters in storming the Gauteng Legislature last month.
In response, the police had to use force to stop the belligerent members of the EFF, who, inter alia, held up a dummy, wearing a nappy bearing President Zuma’s name.
EFF members also burnt an ANC T-shirt. Dramatic scenes of mayhem were displayed on the front pages of the press.
This kind of reprehensible conduct prompts an important discourse on what democracy tolerates by virtue of freedom of expression and legitimate political activity on the one hand, and the kind of conduct that is criminal and constitutes mob rule.
The fundamental rights enshrined in the constitution are, like most rights, not absolute, but are subject to reasonable limitation, inter alia, as encapsulated in section 36. So, for instance, section 17 declares that the right to assembly, demonstration picket and petition must be peaceful and unarmed, and cannot justify criminal conduct of any kind.
Also freedom of expression does not extend to advocacy for war, incitement to violence or the advocacy of hatred based on race, ethnicity or religion. Also laws such as the Regulations of Gatherings Act must be complied with in order to preserve law and order.
From the reports in the media it appears the EFF members manifestly overstepped the border between robust political activity and criminal conduct that involves public violence, malicious damage to property, race hatred and incitement to cause harm.
Criminal conduct would have to be established by a court after prosecution of the offenders. Such conduct threatens the very fabric of democracy in South Africa.
In a democracy, it can be said that the majority must ultimately get its way after debate in the form of legislation and corresponding executive policy and minorities must be guaranteed their say, by virtue of freedom of expression both in parliament and in society at large. If a minority by using questionable strong armed, violent and criminal tactics endeavours to force its ideas and policies on to the majority, then the fate and authentic nature of democracy is undermined and seriously threatened. This is exactly what the EFF and its leader Julius Malema are apparently trying to accomplish.
Persons of all political persuasions need to take a principled and strong stand in this regard. South Africans, having achieved an exemplary democratic constitution at a sublimely great cost, need to guard it against unscrupulous and unprincipled persons in our body politic, who desire to undermine and destroy our hard won freedom and liberty, as encapsulated in a supreme Constitution.
In storming the Gauteng legislature and causing havoc in the precincts of a democratically elected body involved in legitimate deliberation, the EFF were behaving in a fascist manner, which must, it is submitted, be censured in the strongest possible language and the law must take it course in relation to alleged criminal conduct.
There is a strong resemblance between the way the EFF behaves and Hitler’s notorious Storm Troopers, who brought to an inglorious end the Weiner Republic’s exemplary constitution in 1933.
In effect what the EFF wishes to do, is to make Gauteng ungovernable and out of the ensuing havoc derive nefarious political and ill-gotten gains. Making a province ungovernable, whether pursued by the EFF or the so-called “poo” protesters, aligned to the ANC against the DA government in the Western Cape, borders on seditious or treasonable conduct and needs to be dealt with as such.
If the EFF is unhappy with the treatment its members have received in relation to dress code in the Gauteng legislature, or the decisions of the Speaker of Chairperson on the NCOP, they can have recourse to the courts.
However, using methods that are unscrupulous and amount to taking the law into their own hands, are a threat to the very fabric of democratic rule, premised on constitutionalism. The burning of T-shirts and denigration of the president is behaviour that borders, it is submitted, on hate speech. Furthermore, the latter does harm to the office of the Presidency, which requires to be respected and protected. A careful balancing of conflicting interests of public order and individual rights is the essence of democracy premised on the rule of law.
Although robust political discourse and debate are indispensable for a dynamic and operative democracy, the abuse of these rights constitute a dire threat to freedom and liberty. Political wisdom and maturity are essential to discern what is permissible and what is not, in a democratic body politic. Political leaders of all persuasions need to rise to the occasion in this regard. Metaphorically we need to draw a line in the sand. Mob rule and its tactics are the very antithesis of democracy. Liberty is never licence, and the limitation clause permits reasonable restraints in relation to political conduct and speech to ensure law and order prevails, without which anarchy would ensue.
* George Devenish is professor emeritus of public law at UKZN and assisted in drafting the interim constitution in 1993.
** The views expressed here do not necessarily reflect those of Independent Newspapers.