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Ramaphosa invokes apartheid legacy and ‘heckler’s veto’ to suppress free expression

Published Mar 20, 2023


By: Carl ‘Mpangazitha’ Niehaus

It was always predictable that a discredited and morally bankrupt President Ramaphosa would resort to fear-mongering and paranoid ramblings about the impending shutdown protest by the EFF, the African Radical Economic Transformation Alliance, civic organisations, and other trade union formations.

An increasingly paranoid Ramaphosa has conjured up a false image of anarchy and ordered the country’s security forces to ensure there is “no anarchy, intimidation and lawlessness during the EFF’s national shutdown on Monday”.

In his mind, a protest that is not fully supportive of his regime can only mean anarchy, intimidation and lawlessness. In anticipatory justification of the use of force on unarmed protesters, Ramaphosa falsely portrays the protesters as anarchists hell-bent on violence.

“If you are going to restrict the rights of other people – coerce, intimidate and unleash violence – our security forces are going to defend the people of South Africa, because we will not allow anarchy and disorder to prevail in this country. So we will see what happens,” he said.

Far from Ramaphosa’s false narrative built upon fear-mongering, the protest is against the disastrous social and economic policies pursued by his administration to the detriment of our impoverished people.

Areta has joined other progressive forces in demanding Ramaphosa’s immediate resignation and a resolution to the ongoing load-shedding crisis. Instead of resigning to spare the country the enormous pain of incompetent rule, agony and despair, Ramaphosa seeks shelter behind the tired rhetoric of the “rule of law”.

He claims: “South Africa is governed by the rule of law, and we are a constitutional democracy. Regime change can only come about through the vote. It cannot come about through anarchy and unleashing disorder in a country.”

Contrary to Ramaphosa, the right to protest is a fundamental right in South Africa and serves as a bedrock of our democracy. The Constitution of South Africa confirms the right to protest. This right is enshrined in section 17 of the document. Everyone has the right to assemble, to demonstrate, to picket, and to present petitions.

Ramaphosa dishonestly seeks to delegitimise this fundamental constitutional right by labelling those who exercise it as anarchists hell-bent on disorder and disrespecting the rights of others. Invoking the ignominious legacy of his apartheid predecessor PW Botha, Ramaphosa warned: “Yesterday we had a meeting of the national security council, and we discussed this, and the security forces of our country are going to defend our people… They are going to make sure intimidation, anarchy and disorder do not prevail.”

He wants to make sure that the security forces approach the protest with a jaundiced eye and view the protesters as promoting intimidation, anarchy and disorder. But we must see the dictator’s rhetoric for what it is – an unconstitutional justification of violence against the protesters by the security forces and the regime’s endorsement of an odious form of a “heckler’s veto”.

Section 17 of the Constitution enshrines the right to protest and does not limit protest action, except to say that it must be undertaken in a way that is peaceful and unarmed. No one has suggested that the protest would not be peaceful except Ramaphosa.

The unanimous judgment of the Constitutional Court in Mlungwana v Minister of Police emphatically recognised the importance of the right to protest: “People who lack political and economic power have only protests as a tool to communicate their legitimate concerns. To take away that tool would… frustrate a stanchion of our democracy: public participation.” The judgment notes the chilling effect criminalisation has on all people, and children in particular: “For children, who cannot vote, assembling, demonstrating, and picketing are integral to their involvement in the political process… exposing children to the criminal justice system – even if diverted under the Child Justice Act – is traumatic and must be a measure of last resort.”

The judgment recognised that criminal sanctions for protests that do not pose a danger to the public are disproportionate, and thus unconstitutional. Equally damnable are the sabre-rattling and threats of violence by the security forces under the guise of maintaining law and order. Just as administrative fines might be unconstitutional, it is equally despicable for a president to label and characterise his opponents as violent anarchists and instruct security forces to regard protesters as enemies of the state and anarchists.

Areta condemns Ramaphosa’s approach, which is a naked attempt to make a “heckler’s veto” a part of our constitutional order, and to infuse the security forces with the ethos of apartheid police apparatus. The origins of the heckler’s veto can be traced back to the US. Black’s Law Dictionary defines the heckler’s veto as “the government’s restriction or curtailment of a speaker’s right to freedom of speech when necessary to prevent possibly violent reactions from listeners.”

The dictionary further defines the “heckler’s veto doctrine” as: “The principle that a public entity may not suppress a speaker’s right of free speech solely because a crowd reacts negatively. Under this doctrine, a court must determine whether a public disturbance was caused by the speaker’s opponents.”

A dictatorial government, instead of reinforcing security and taking protective measures to ensure that no law-and-order situation arises, would typically extinguish the exercise of the right to free speech or protest itself in the hope that, if there is no exercise of rights, there shall be no backlash or law-and-order situation.

What Ramaphosa has done is to turn the security forces against the protesters even before the scheduled protests, and also incited his supporters to bring the pressure of the mob to support the government’s unreasonable restraints on the anticipated protests.

Ramaphosa has in turn used his rhetoric to threaten the protesters from exercising their rights, as he anticipates that a breakdown of law and order may arise. But he has it all wrong – the government’s duty is to ensure that no law-and-order breakdown arises owing to the actions of those who oppose the exercise of such rights by the protesters.

Courts in the US and India have rejected unconstitutional stratagems similar to those envisaged by Ramaphosa. The US Supreme Court in Terminiello v City of Chicago (1949) held that a “breach of peace” ordinance of the City of Chicago that banned speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional under the first and 14th amendments to the US Constitution. Justice Douglas explained that “a function of free speech under our system of government is to invite dispute”. He further said: “The vitality of civil and political institutions in our society depends on free discussion… it is only through free debate and free exchange of ideas that government remains responsive to the will of the people… The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.”

In a similar vein, two judgments of the Supreme Court of India, Gulam Abbas v State of UP (1981) and Indibily Creative Pvt Ltd v State of WB (2019), rejected the state’s excuse for failure to protect the protesters against a disapproving mob.

In Gulam Abbas, the Supreme Court dealt with section 144 of the Indian code of criminal procedure, where the authorities disallowed Shia Muslims from performing religious ceremonies as they apprehended unlawful hindrance from Sunni Muslims, which would affect the peace and tranquillity of the locality.

The court declared that “it would not be a proper exercise of discretion on the part of the executive magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant”.

In Indibily Creative, the court the ruled against Kolkata police, who tried to prevent a film from being exhibited on the ground that it might cause public unrest. Allowing the petition, the court stated as follows:

“50. The freedoms which are guaranteed by article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing ‘negative’ restraints on the state, these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that the conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organised interests threaten the existence of freedom. The state is duty-bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilised to effectuate the exercise of freedom. When organised interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of ‘similar misadventures’. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”

Ramaphosa has forgotten that he is elected to be the president of South Africa instead of serving only narrow factional interests of the ruling ANC.  He forgets the positive obligations imposed on the state to protect the protesters against disapproving onlookers and the violence of the security police.

Areta urges Ramaphosa and his ministers of police and justice to understand that state institutions cannot be used to shield a discredited president from the wrath of the masses who can no longer stomach his corrupt, incompetent and rudderless leadership.

*Carl ‘Mpangazitha’ Niehaus wrote this article in his official capacity as the national chairperson of the working board of Areta.