Students have a right to protest, but...

It's not surprising students may invoke the right to protest but turn a blind eye to the stipulation that the protest must be peaceful, says Pierre de Vos.

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

A group of activists and UCT students interrupt the fees commission in Cape Town over their suspensions during #FeesMustFall protests. File picture: David Ritchie. Credit: INDEPENDENT MEDIA

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

It was impossible to continue with lectures because a group of students and other non-student protesters blocked entrances to the campus and disrupted classes.

Partly because of the significance of such protests during apartheid and because of brutal attempts of the apartheid state to clamp down on many types of anti-apartheid protests, the right to assemble and to protest in order 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”.

It is true that some protesters overstep the mark and fail to adhere to the requirement to protest “unarmed and peacefully”. 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 by using excessive force doing so.

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 that 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 that their bodily integrity has been compromised.

It is not surprising that some students may invoke the right to protest but may 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 other parts of the Bill of Rights that we believe is 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 protests. 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 of the Bill of Rights) is being limited or that his or her right to education (guaranteed by Section 29) is being compromised.

In an authoritarian or fascist state the police would have detained all the protesting students, or at the very least, all the leaders of the protests 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 shoot protesting students “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 our government would order the army to open fire on unarmed students.

In doing so, lawyers would invoke Section 35 of the Bill of Rights which prohibits detention without trial and also 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 social-networking sites like Twitter and Facebook (as the Chinese government does) on the grounds that students use these platforms to mobilise their fellow students.

It is also unthinkable that the government would close down TV and radio stations or newspapers for broadcasting news of the protests.

Many of us would be outraged if the government clamped down on the freedoms enshrined in the Constitution. At the mass demonstration that will 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 easily be formulated in terms of the rights protected in the Bill of Rights.

Opponents of the student protests 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. It states that everyone has the right to “further education, which the state, through reasonable measures, must make progressively available and accessible”.

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